# Alberto Garcia, Jr.

> United States Tax Court · May 19, 2025

URL: https://www.frixlaw.com/law-library/cases/11053228

## Case

- **Court:** United States Tax Court
- **Decided:** May 19, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Toro
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

United States Tax Court
REVIEWED
164 T.C. No. 8

ALBERTO GARCIA, JR.,
Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,
Respondent

—————

Docket No. 27496-22P. Filed May 19, 2025.

—————

P failed to pay tax liabilities totaling more than
$100,000 that R assessed between 2007 and 2010. R filed
suit in federal district court to reduce those liabilities to
judgment in 2014; the district court entered a default
judgment against P. In 2022, R certified to the Secretary
of State that P has a “seriously delinquent tax debt” within
the meaning of I.R.C. § 7345(b). P filed a Petition with this
Court under I.R.C. § 7345(e)(1) to challenge the
certification.

R filed a Motion for Summary Judgment
maintaining that the certification was proper. R’s Motion
argues, in relevant part, that P’s liabilities were “legally
enforceable” within the meaning of I.R.C. § 7345(b) because
the 2014 default judgment extended the limitations periods
for collection after assessment with respect to those
liabilities until at least 2034. P filed a Response, alleging
that he was never served in the district court action, that
the debt is no longer enforceable, and thus that R’s
certification was erroneous.

Held: Our determination of whether R’s certification
under I.R.C. § 7345(a) is erroneous is made not simply on
the administrative record but on a new record made at the

Served 05/19/25
2

Tax Court, which may include, where appropriate (as
here), evidence introduced at trial.

Held, further, a tax liability is not “legally
enforceable” within the meaning of I.R.C. § 7345(b) if the
limitations period for collecting it after assessment has
expired.

Held, further, whether the relevant limitations
periods for collection remained open at the time of the
certification here turns on whether P was served in the
district court action, which is a disputed issue of fact.

Held, further, because a material issue of fact exists,
R is not entitled to summary judgment.

TORO, J., wrote the opinion of the Court, which
KERRIGAN, C.J., and BUCH, NEGA, PUGH, ASHFORD,
URDA, COPELAND, JONES, GREAVES, MARSHALL,
WEILER, WAY, LANDY, ARBEIT, GUIDER, JENKINS,
and FUNG, JJ., joined.

—————

Steven L. Powell, for petitioner.

Susan K. Bollman, John S. Hitt, and Cierra C. Harris, for respondent.

OPINION

TORO, Judge: This passport case involving old tax liabilities
requires the Court to decide an issue of first impression concerning the
scope of our review in cases arising under section 7345(e). 1 Here is why.

On October 17, 2022, the Commissioner of Internal Revenue
certified to the Secretary of State that petitioner, Alberto Garcia, Jr.,

1 Unless otherwise indicated, statutory references are to the Internal Revenue

Code, Title 26 U.S.C. (I.R.C. or Code), in effect at all relevant times, regulation
references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all
relevant times, and Rule references are to the Tax Court Rules of Practice and
Procedure.
3

owes a “seriously delinquent tax debt” related to tax years 2005, 2006,
2007, and 2008. I.R.C. § 7345(a). 2

For a federal tax liability to constitute a “seriously delinquent tax
debt,” that liability must be “legally enforceable” as of the time of the
Commissioner’s certification. I.R.C. § 7345(b)(1). A tax liability is not
legally enforceable if the period of limitations for collecting it has
expired. See I.R.C. § 6502(a).

Ordinarily, a tax liability must be collected within ten years of
assessment. Id. The liabilities at issue here were assessed more than
ten years before October 2022. Mr. Garcia therefore contends they are
no longer legally enforceable, making the certification erroneous.

The Commissioner disagrees. He maintains that an exception to
the ten-year rule applies because Mr. Garcia’s tax liabilities were
reduced to judgment in a suit filed in the U.S. District Court for the
Southern District of Texas (district court suit). United States v. Garcia,
No. 14-209 (S.D. Tex. Aug. 11, 2014). Relying on 28 U.S.C. § 3201(c)(1),
the Commissioner asserts the government has at least another 20 years
from the date of the judgment to collect them. See I.R.C. § 6502(a) (flush
language). The Commissioner therefore has moved for summary
judgment that the certification was not erroneous.

Mr. Garcia resists the Commissioner’s Motion. He maintains that
he was never served in the district court suit and that the judgment
entered in that suit is void.

To resolve the Motion, we must decide a question that we have
until now found unnecessary to answer in passport cases: What is the
scope of our review or, put differently, on what evidence do we determine
whether the Commissioner’s certification that a seriously delinquent tax

2 As we have explained before,

[s]ection 7345 outlines a two-step procedure whereby the
Commissioner sends certification to the Secretary of the Treasury, who
then transmits the certification to the Secretary of State. In practice,
the IRS follows a one-step procedure whereby the Commissioner, as
the Secretary’s delegate, transmits the certification directly to the
State Department. See I.R.C. § 7701(a)(11); Internal Revenue Manual
5.1.12.27.1, .6, .8 (Dec. 20, 2017).
Adams v. Commissioner, 160 T.C. 1, 6 n.4 (2023), aff’d, 122 F.4th 429 (D.C. Cir. 2024).
4

debt exists is correct? 3 As we will explain, the text of the statute read
in view of our precedents directs that the scope of review is de novo.
That is, in appropriate circumstances like the ones here, our review is
not limited to the administrative record but must include evidence
introduced at a trial.

And because Mr. Garcia raises a genuine issue of material fact as
to whether he was served in the district court suit, we cannot conclude
at this stage of the proceedings that the liabilities at issue are legally
enforceable. We therefore will deny the Commissioner’s Motion.

Background

The following facts are derived from the parties’ pleadings,
Motion papers, and a hearing on the Motion. They are stated solely for
the purpose of ruling on the Motion before us and not as findings of fact
in this case. 4 See Rowen, 156 T.C. at 103.

On October 17, 2022, the Commissioner certified that Mr. Garcia
owed a “seriously delinquent tax debt” pursuant to section 7345(a). The
Commissioner based his certification on $129,959.05 of unpaid liabilities
relating to Mr. Garcia’s income tax and taxes Mr. Garcia owed as an
employer. The Commissioner sent Notice CP508C, Notice of
Certification of Your Seriously Delinquent Federal Tax Debt to the State
Department (Notice), to Mr. Garcia’s last known address at the same
time.

The liabilities underpinning the Commissioner’s certification
with respect to Mr. Garcia are old. With one exception immaterial to
our analysis and not counting interest, they were assessed between

3 See, e.g., Rowen v. Commissioner, 156 T.C. 101, 106 (2021) (reviewed)
(“Although a court reaching a decision on the merits ordinarily must consider both the
scope of review (that is, what evidence the court will consider) and the standard of
review (that is, how the court will evaluate the evidence it considers), see Kasper v.
Commissioner, 150 T.C. 8, 14 (2018), we need not do so here.”); see also, e.g., Meduty v.
Commissioner, 160 T.C. 526, 529 (2023) (citing Rowen, 156 T.C. at 106) (same); Adams,
160 T.C. at 5–6 (citing Rowen, 156 T.C. at 106) (same); Pfirrman v. Commissioner, T.C.
Memo. 2025-22, at *3 (citing Rowen, 156 T.C. at 106) (same).
4 But see the discussion in note 10 below regarding the application of

Rule 121(h).
5

March 26, 2007, and August 23, 2010. 5 The Commissioner filed, for each
liability, a Notice of Federal Tax Lien pursuant to section 6323 between
March 21, 2008, and February 11, 2011. He sent Notices of those filings
to Mr. Garcia’s last known address, as required by section 6320(a),
between March 27, 2008, and February 15, 2011. Mr. Garcia requested
a Collection Due Process (CDP) hearing in response to only one of those
Notices; that hearing concluded on April 11, 2009. It is uncontested that
the time for seeking hearings on the other Notices had expired before
October 2022.

As required by section 6330(a), between March 17, 2008, and
October 25, 2010, the Commissioner sent to Mr. Garcia Notices of Intent
to Levy and Right to a CDP Hearing. Mr. Garcia did not request a CDP
levy hearing in response to any of the Notices mailed to him.

On January 30, 2014, the Commissioner initiated the district
court suit to reduce Mr. Garcia’s liabilities to judgment. Mr. Garcia did
not appear in the district court suit; nor did anyone appear on his behalf.
On August 11, 2014, the district court entered a default judgment
against Mr. Garcia.

As already noted, the Notice was issued on October 17, 2022.
Mr. Garcia lived in Texas when he timely filed his Petition with our
Court on December 14, 2022. 6 On October 18, 2023, the Commissioner
filed a Motion for Summary Judgment.

We set the Motion for a hearing at our March 18, 2024, session in
Houston, Texas. At that hearing, pro bono lawyers participating in the
Court’s Calendar Call Program made a limited appearance on
Mr. Garcia’s behalf. Mr. Garcia’s lawyers advanced several arguments,
one of which was that the debt might be unenforceable. This was so, the
argument went, because the periods of limitations for collection were no

5 The one liability not assessed on or before August 23, 2010, was assessed on

June 29, 2018. That liability amounted to $44. With respect to that liability, the
Commissioner filed a Notice of Lien on June 29, 2018, and notified Mr. Garcia of that
filing on July 3, 2018. Mr. Garcia did not request a CDP hearing in response to the
CDP lien notice. And no Notice of Intent to Levy was issued with respect to the
liability. Because this liability is too small to make a difference to our analysis, we do
not discuss it further.
6 Absent stipulation to the contrary, see I.R.C. § 7482(b)(2), appeal of this case

would lie to the U.S. Court of Appeals for the District of Columbia Circuit, see I.R.C.
§ 7482(b)(1) (flush language); Adams v. Commissioner, 122 F.4th at 433–34.
6

longer open as Mr. Garcia had not been served in connection with the
district court suit. Mr. Garcia himself contested being served.

At the conclusion of the hearing, the parties sought additional
time to explore resolving the case, and the Commissioner sought
additional time to brief the enforceability issue. We agreed to provide
the parties additional time and denied the October 2023 Motion without
prejudice to the Commissioner’s renewing it.

Following the hearing, Mr. Garcia obtained representation, but
unfortunately the parties were unable to reach a resolution. The
Commissioner filed a new Motion for Summary Judgment on August 28,
2024, which was then supplemented on September 30, 2024. A
Response was filed on September 27, 2024.

The Court held a telephone conference call with the parties on
October 11, 2024, to discuss the status of the case. During that call,
Mr. Garcia’s counsel indicated that he might pursue relief from the
August 11, 2014, judgment in the U.S. District Court for the Southern
District of Texas. The Court is unaware, however, of counsel’s efforts on
that front and sees no reason to further delay ruling on the August 2024
Motion.

Discussion

I. General Principles of Law

A. Summary Judgment

The purpose of summary judgment is to expedite litigation and
avoid costly, time-consuming, and unnecessary trials. Fla. Peach Corp.
v. Commissioner, 90 T.C. 678, 681 (1988).

Generally, in cases that are subject to a de novo scope of review,
this Court may grant summary judgment when there is no genuine
dispute as to any material fact and a decision may be rendered as a
matter of law. Rule 121(a)(2); Sundstrand Corp. v. Commissioner, 98
T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). In such cases,
the moving party bears the burden of proving that summary judgment
is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Espinoza v. Commissioner, 78 T.C. 412, 416 (1982). And, in deciding
whether to grant summary judgment in such cases, we construe factual
materials and inferences drawn from them in the light most favorable
to the adverse party. Sundstrand Corp., 98 T.C. at 520.
7

As we recognized in Van Bemmelen v. Commissioner, 155 T.C. 64,
78 (2020), in cases in which the Court “must confine [itself] to the
administrative record to decide whether there has been an abuse of
discretion,” the ordinary “summary judgment standard is not generally
apt.” In those cases, “summary judgment serves as a mechanism for
deciding, as a matter of law, whether the agency action is supported by
the administrative record and is not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Id. at 79; see also
Rule 121(j).

Our Court has not yet decided the scope of review and the
standard of review for cases arising under section 7345(e). As we
observed in Rowen, 156 T.C. at 106, until now we have had no need to
consider the scope and standard of review because “there [had been] no
dispute between the parties with respect to the evidence we should
consider . . . [and] our decision would [have been] the same whether we
reviewed the Commissioner’s certification de novo or for abuse of
discretion.” The circumstances here are different. The nature of the
evidence considered on this Motion for Summary Judgment could be
determinative to our decision, so we must decide the proper scope of
review. As explained below, we conclude that review of section 7345
certifications should occur on a new record made at the Tax Court, which
may include, where appropriate, evidence introduced at trial. 7

B. Certifications of Seriously Delinquent Tax Debts

Congress enacted section 7345 as part of the Fixing America’s
Surface Transportation Act (FAST Act), Pub. L. No. 114-94, § 32101(a),
129 Stat. 1312, 1729 (2015). We provided a comprehensive description
of FAST Act § 32101 and Code section 7345 in Rowen and need not
repeat that discussion here. See also Adams v. Commissioner, 122 F.4th
at 431–32. We focus instead on the portions of section 7345 relevant to
the dispute before us.

If the Commissioner certifies that a taxpayer owes “a seriously
delinquent tax debt,” under section 7345(a), that certification shall be
transmitted “to the Secretary of State for action with respect to denial,
revocation, or limitation of [the taxpayer’s] passport.” The

7 But, as we also explain below, the need for trials in passport cases will likely

be rare, because we expect the circumstances facing us here (where the relevant
question cannot be answered by reviewing the administrative record) to arise
infrequently.
8

Commissioner is responsible for notifying the taxpayer of the
certification. I.R.C. § 7345(d).

1. Definition of “Seriously Delinquent Tax Debt”

The term “seriously delinquent tax debt” is defined in
section 7345(b). It generally means

an unpaid, legally enforceable Federal tax liability of an
individual—
(A) which has been assessed,
(B) which is greater than $50,000, and
(C) with respect to which—
(i) a notice of lien has been filed
pursuant to section 6323 and the
administrative rights under section 6320 with
respect to such filing have been exhausted or
have lapsed, or
(ii) a levy is made pursuant to section
6331.

I.R.C. § 7345(b)(1); Adams v. Commissioner, 122 F.4th at 431. The
threshold amount described in subparagraph (B) is modified by
subsection (f) to account for inflation. The threshold amount relevant
here (i.e., the amount for the year when the section 7345 certification
was made) was $55,000. See Rev. Proc. 2021-45, § 3.59, 2021-48 I.R.B.
764, 774.

2. The Tax Court’s Role in Reviewing Section 7345
Certifications

When the Commissioner certifies that a taxpayer has a seriously
delinquent tax debt, the taxpayer may petition this Court “to determine
whether the certification was erroneous or whether the Commissioner
has failed to reverse the certification.” I.R.C. § 7345(e)(1). If we
“determine[] that [the] certification was erroneous,” we “may order the
Secretary [of the Treasury] to notify the Secretary of State that such
certification was erroneous.” I.R.C. § 7345(e)(2); Adams v.
Commissioner, 122 F.4th at 432. The statute specifies no other form of
relief that we may grant. Ruesch v. Commissioner, 25 F.4th 67, 70 (2d
9

Cir. 2022), aff’g in part, vacating and remanding in part per curiam 154
T.C. 289 (2020). 8

II. Analysis

A. Satisfied Requirements of Section 7345

Aside from interest, Mr. Garcia’s liabilities were assessed
between March 26, 2007, and August 23, 2010, and both they and the
relevant interest remain unpaid. See I.R.C. § 7345(b)(1)(A). Together,
at the time of certification in 2022, they totaled an amount far greater
than the $55,000 threshold. See I.R.C. § 7345(b)(1)(B); Rev. Proc. 2021-
45, § 3.59. With respect to each component liability, the Commissioner
filed a Notice of Lien pursuant to section 6323 and sent to Mr. Garcia a
notice of such filing. See I.R.C. § 7345(b)(1)(C)(i). Mr. Garcia requested,
and participated in, a CDP hearing in response to one of the Notices of
Lien, and it is uncontested that the time for requesting a hearing on the
others had passed. See id. And, with respect to all but one of the
liabilities, a levy had been made pursuant to section 6331. See I.R.C.
§ 7345(b)(1)(C)(ii).

The Commissioner asserts that Mr. Garcia is not paying any of
his debts pursuant to an agreement under section 6159 or 7122. See
I.R.C. § 7345(b)(2)(A). Mr. Garcia has neither challenged this assertion
nor set forth specific facts to show that a genuine dispute of fact exists
on this issue. See Rule 121(d). Likewise, collection is not suspended
with respect to Mr. Garcia. See I.R.C. § 7345(b)(2)(B).

8 Section 7345(e) reads in full as follows:

Sec. 7345(e). Judicial review of certification.—
(1) In general.—After the Commissioner notifies an
individual under subsection (d), the taxpayer may bring a civil
action against the United States in a district court of the
United States, or against the Commissioner in the Tax Court,
to determine whether the certification was erroneous or
whether the Commissioner has failed to reverse the
certification. For purposes of the preceding sentence, the court
first acquiring jurisdiction over such an action shall have sole
jurisdiction.
(2) Determination.—If the court determines that such
certification was erroneous, then the court may order the
Secretary to notify the Secretary of State that such certification
was erroneous.
10

In short, the Commissioner has demonstrated that Mr. Garcia’s
outstanding liabilities satisfy all but one of the requirements to qualify
as a “seriously delinquent tax debt” under section 7345. 9 All that
remains is to consider whether the liabilities are legally enforceable. 10
See I.R.C. § 7345(b)(1).

B. Legal Enforceability

As we have already discussed, a liability must be legally
enforceable to qualify as a “seriously delinquent tax debt.” I.R.C.
§ 7345(b)(1). Not all potential errors render a liability unenforceable.
See, e.g., Adams, 160 T.C. at 13 (“Section 7345 requires simply that the
liability ‘has been assessed,’ not that the liability ‘has been properly
assessed.’”). At a minimum, however, the phrase “legally enforceable”
requires an inquiry into whether the limitations period for collection
after assessment has expired with respect to all or part of the liability.
See Ruesch, 154 T.C. at 296 (“We are also authorized to consider whether
the tax debt ‘has been fully satisfied or has become legally
unenforceable.’ Sec. 7345(c)(2)(A). The latter would be true where the
collection period of limitations had expired. See sec. 6502(a).”); see also
Adams, 160 T.C. at 12 (“[A]lthough our opinion in Ruesch was deprived
of its precedential effect, it has not lost its persuasive value.”).

The Commissioner concedes as much. As the Motion observes,

Section 7345’s requirement that a tax liability be “legally
enforceable” refers not to the validity of the assessment,
but rather verification that the liability can still be
collected at the time a certification is made or is in effect.
For example, a tax liability would not be “legally
enforceable” if the period of limitations under I.R.C.
§ 6502(a) for collecting the tax had expired.

Resp’t’s Mot. 18. To uphold the Commissioner’s certification, therefore,
we must determine that the limitations periods for collection after
assessment have not expired.

9 Mr. Garcia does not ask us to consider, nor can we consider, the merits of his

underlying liabilities.
10 In view of the foregoing, for purposes of future proceedings, the facts

underlying our conclusion that Mr. Garcia’s outstanding liabilities satisfy all of the
requirements to qualify as a “seriously delinquent tax debt” under section 7345 (except
for the enforceability point) shall be treated “as established in the case.” Rule 121(h).
11

Section 6502 generally requires the IRS to collect a tax liability,
if at all, within ten years after the liability’s assessment. I.R.C.
§ 6502(a)(1). Interest that accrues on an unpaid tax liability must be
assessed and collected within the same period. I.R.C. § 6601(g); Treas.
Reg. § 301.6601-1(f)(1); see also Fisher v. United States, 80 F.3d 1576,
1580 (Fed. Cir. 1996); Gingerich v. United States, 78 Fed. Cl. 164, 169
n.4 (2007).

Certain conditions extend the ten-year limitations period. As
relevant here, if the United States brings an action in court to collect a
liability and obtains a judgment, the limitations period for collection is
extended until the judgment is satisfied or becomes unenforceable.
I.R.C. § 6502(a) (flush language). The Federal Debt Collection
Procedures Act of 1990, which provides “exclusive civil procedures” for
the United States “to recover a judgment on a debt,” does not provide a
default duration for judgments entered under its procedures. 28 U.S.C.
§ 3001. See generally 28 U.S.C. §§ 3001–3308. The U.S. Court of
Appeals for the Ninth Circuit has concluded that the Act’s silence
regarding judgment duration signals that judgments to which the Act
applies last indefinitely, even if state law would impose a limitation. See
United States v. Gianelli, 543 F.3d 1178, 1183 (9th Cir. 2008). The U.S.
Court of Appeals for the Fifth Circuit has reached the same conclusion,
albeit in an unpublished opinion. See FTC v. Namer, 481 F. App’x 958,
959–60 (5th Cir. 2012). In view of our disposition, we need not resolve
now the precise duration of a judgment entered under the Act.

The Commissioner asserts that the 2014 judgment extended the
limitations periods here until August 11, 2034. Resp’t’s Mot. 11, 20, 25.
The Commissioner relies on 28 U.S.C. § 3201. 11 We accept arguendo
solely for purposes of our analysis the Commissioner’s legal conclusion.
We go on to consider whether the factual foundations applicable to that
conclusion are correct.

The Commissioner assessed all but one of Mr. Garcia’s liabilities
between March 26, 2007, and August 23, 2010. Absent any extension,
the section 6502(a)(1) limitations periods for those liabilities would have
expired between March 26, 2017, and August 23, 2020, more than two
years before the Commissioner made his section 7345 certification.

11 Under that section, a judgment in an action to collect a tax liability creates

a 20-year lien on all real property of a judgment debtor. 28 U.S.C. § 3201(a), (c)(1).
That lien may be further renewed for 20 years. 28 U.S.C. § 3201(c)(2).
12

The district court entered a default judgment against Mr. Garcia
on August 11, 2014. In the Commissioner’s view, that judgment
extended the limitations periods until August 11, 2034, long after the
Commissioner’s certification. See I.R.C. § 6502(a) (flush language); 28
U.S.C. § 3201.

But Mr. Garcia asserts that he was never served in the 2014
action. Pet’r’s Resp. 1. This is not the first time that he has disputed
service in the action. His Calendar Call counsel made a similar
assertion on the record at the March 18, 2024, hearing:

[T]here is a question about whether that collection statute
is still open. My understanding is, that the main grounds
on which the collection statute was extended, was that
there was—that Mr. Garcia was never served. And there
was a judgment entered against him, and that extended it.
And Mr. Garcia says he was never served. So there’s at
least some question to explore on that.

Tr. of Hous., Tex., Hr’g on Mar. 18, 2024, at 2–3.

Mr. Garcia echoed the same point, observing: “They said they
served me, which never happened. . . . I asked for copies to see whether
I was served, or my signature, that I was at that office and . . . that never
happened . . . .” Id. at 14; see also id. (“I was unaware, and didn’t have
anything to do with [the district court suit].”).

A judgment entered without personal jurisdiction over the
defendant is void. See, e.g., Earle v. McVeigh, 91 U.S. 503, 507 (1875)
(“Standard authorities lay down the rule, that, in order to give any
binding effect to a judgment, it is essential that the court should have
jurisdiction of the person and the subject-matter; and it is equally clear
that the want of jurisdiction is a matter that may always be set up
against a judgment when sought to be enforced, or where any benefit is
claimed under it, as the want of jurisdiction makes it utterly void and
unavailable for any purpose.” (citing Borden v. Fitch, 15 Johns. 121, 141
(N.Y. Sup. Ct. 1818))); Combs v. Nick Garin Trucking, 825 F.2d 437, 442
(D.C. Cir. 1987) (“Of course, an in personam judgment entered without
personal jurisdiction over a defendant is void as to that defendant.”
(citing Thos. P. Gonzalez Corp. v. Consejo Nacional De Produccion De
Costa Rica, 614 F.2d 1247, 1255 (9th Cir. 1980))); see also Burnham v.
Superior Ct. of Cal., 495 U.S. 604, 608–09 (1990) (Scalia, J.) (plurality
opinion) (tracing the history of the rule); 10A Charles Alan Wright &
13

Arthur R. Miller, Federal Practice and Procedure § 2695 (4th ed. 2024)
(collecting authorities). “And, since service of process is the means by
which a court asserts jurisdiction to adjudicate the rights of a party, it
is uniformly held that a judgment is void where the requirements for
effective service have not been satisfied.” Combs, 825 F.2d at 442
(footnote omitted). As the Fifth Circuit has summarized the relevant
law, in cases

in which the defendant makes no appearance and the
judgment goes by default, the defendant may defeat
subsequent enforcement in another forum by
demonstrating that the judgment issued from a court
lacking personal jurisdiction. See Pardo v. Wilson Line of
Washington, Inc., 414 F.2d 1145 (D.C. Cir. 1969). Of
course, the “burden of undermining [the judgment] rests
heavily upon the assailant,” Williams v. North Carolina,
325 U.S. 226, 233–234 (1945); and, should the attack fail,
the default judgment becomes no less final and
determinative on the merits of the controversy than a
decree entered after full trial. Moyer v. Mathas, 458 F.2d
431 (5th Cir. 1972).

Hazen Rsch., Inc. v. Omega Mins., Inc., 497 F.2d 151, 154 (5th Cir. 1974)
(alteration in original); see also Ins. Corp. of Ireland v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 706 (1982) (“A defendant is always
free to ignore the judicial proceedings, risk a default judgment, and then
challenge that judgment on jurisdictional grounds in a collateral
proceeding.” (citing Baldwin v. Iowa State Traveling Men’s Ass’n, 283
U.S. 522, 525 (1931))).

If Mr. Garcia truly was not served in the 2014 district court suit,
the district court’s default judgment would be void. As a result, the
period in which the Commissioner could have collected Mr. Garcia’s
liabilities would have expired between 2017 and 2020, and thus all but
$44 of the liabilities would not be “legally enforceable” within the
meaning of section 7345(b). Therefore, we must consider whether the
district court established personal jurisdiction over Mr. Garcia in the
district court suit.

Moreover, because the Commissioner’s certification was made
after Mr. Garcia’s rights to petition the Tax Court for redetermination
of a deficiency or review of a CDP determination had expired, and
because the nonextended limitations periods would have run after
14

Mr. Garcia’s rights to petition the Tax Court expired, this is Mr. Garcia’s
first opportunity to raise the limitations inquiry at the Tax Court. Cf.
Adams v. Commissioner, 122 F.4th at 435 (prohibiting taxpayer from
challenging underlying liability in passport action when he had earlier
failed to pursue remedies at the Tax Court).

The Commissioner cites Garcin v. Commissioner, 22 B.T.A. 1027
(1931), for the proposition that the Tax Court “has previously held that
a petitioner cannot collaterally attack a prior district court judgment by
claiming there was improper service in the district court action.”
Resp’t’s Mot. 26. The Commissioner’s reliance on Garcin is misplaced.
Garcin did not involve a petitioner who sought to void a district court
judgment because the petitioner was not served in the prior action.
Rather, the Garcin petitioner sought to void a judgment against a
company with respect to which the petitioner was the sole stockholder
and a transferee. Garcin, 22 B.T.A. at 1035–36. The Garcin petitioner
maintained that, even though he himself had been served in the prior
action, as had the company’s former secretary, service problems
nevertheless rendered the judgment in that action void. Id. at 1038–39.
The Board of Tax Appeals found the circumstances insufficient to
support a successful collateral attack. Id.

Unlike the petitioner in Garcin, Mr. Garcia asserts that the
judgment entered against him is void because he himself was not served.
That challenge is entirely proper. Cf. Earle, 91 U.S. at 507 (“[I]t is
equally clear that the want of jurisdiction . . . may always be set up
against a judgment . . . where any benefit is claimed under it, as the
want of jurisdiction makes it utterly void and unavailable for any
purpose.”); United States v. Bigford, 365 F.3d 859, 873 (10th Cir. 2004)
(“[A] defendant in a [Deadbeat Parents Punishment Act] prosecution
may challenge an underlying default support order on the basis that the
state court that issued the order lacked personal jurisdiction over the
defendant.”).

C. Scope of Review Under Section 7345

In prior passport actions, it was unnecessary to resolve the proper
scope of our review of the Commissioner’s certifications. See supra
note 3 (collecting authorities). That was so because the parties did not
dispute the evidence that we should review.
15

In this case, however, the proper scope of review matters to our
disposition. If we are limited to review on the administrative record, we
would look only to the Commissioner’s record of the judgment’s entry—
a record that does not speak to the service issue Mr. Garcia raises—to
determine whether the limitations periods for collection have been
extended with respect to the liabilities underpinning Mr. Garcia’s
seriously delinquent tax debt.

On the other hand, review on a new record developed at this
Court, including any evidence introduced at a trial, would permit the
Court to consider evidence regarding whether Mr. Garcia was served in
the district court suit. 12

Section 7345 itself does not expressly set out the scope of review
applicable to certifications under section 7345(a). See I.R.C. § 7345(e).
But a careful review of the text of section 7345(e) and our Court’s other
jurisdictional provisions—including provisions related to deficiency
redeterminations, innocent spouse relief, whistleblower actions, and
collection due process review—sheds light on the proper scope in
passport actions.

1. General Principles

The Administrative Procedure Act (APA) created norms for
judicial review of agency action. See 5 U.S.C. §§ 701–706; Ax v.
Commissioner, 146 T.C. 153, 161 (2016). The Supreme Court has held
that “in cases where Congress has simply provided for review, without
setting forth the standards to be used or the procedures to be followed,
. . . consideration is to be confined to the administrative record and . . .
no de novo proceeding may be held.” United States v. Carlo Bianchi &
Co., 373 U.S. 709, 715 (1963). The general rule under the APA is that
“review of an agency decision is limited to the administrative record.”
Kasper v. Commissioner, 150 T.C. 8, 14–15 (2018) (quoting Wilson v.

12 Although we may supplement the designated administrative record with

extra-record evidence in certain circumstances in cases subject to record review, see
Berenblatt v. Commissioner, 160 T.C. 534, 549 (2023) (discussing supplements to the
administrative record in whistleblower cases); Van Bemmelen, 155 T.C. at 76 (same),
proceedings to supplement are not well suited to this case. The evidence relevant to
our inquiry (involving the circumstances relating to service on the defendant in the
district court suit) would not be of a type that the IRS should be expected to collect in
the ordinary course of carrying out its responsibilities. Moreover, evaluation of that
evidence may well turn on matters of credibility that are best resolved at a trial in
which the Court has an opportunity to observe the relevant witnesses.
16

Commissioner, 705 F.3d 980, 991 (9th Cir. 2013), aff’g T.C. Memo. 2010-
134).

But this is a default rule, and the APA’s general provisions do not
supersede specific statutory provisions. Id. at 15; see also Porter v.
Commissioner, 130 T.C. 115, 118 (2008) (reviewed). “When Congress
enacted the APA to provide a general authorization for review of agency
action in the district courts, it did not intend that general grant of
jurisdiction to duplicate the previously established special statutory
procedures relating to specific agencies.” Bowen v. Massachusetts, 487
U.S. 879, 903 (1988).

2. Deficiency Redeterminations

In proceedings to redetermine deficiencies brought under
section 6213, the Tax Court reviews a new record created by the parties.
Kasper, 150 T.C. at 15 (“One conspicuous exception to the default ‘record
rule’ is our deficiency jurisdiction under section 6213(a) . . . .”). In the
deficiency context, Congress instructs the Tax Court to make a
“redetermination” of the deficiency proposed by the Commissioner.
I.R.C. § 6213(a). Congress first granted the Board of Tax Appeals (the
predecessor to the Tax Court) jurisdiction to “redetermine” deficiencies
and additions to tax in 1924. Porter, 130 T.C. at 119 (citing Ewing v.
Commissioner, 122 T.C. 32, 38 (2004), rev’d in part, vacated in part on
other grounds, 439 F.3d 1009 (9th Cir. 2006)). Since 1926, we have also
had jurisdiction to “determine” overpayments. Id.

These determinations and redeterminations have always been
made on a new record. Id.; Greenberg’s Express, Inc. v. Commissioner,
62 T.C. 324, 327–28 (1974); see also Clapp v. Commissioner, 875 F.2d
1396, 1403 (9th Cir. 1989); Raheja v. Commissioner, 725 F.2d 64, 66 (7th
Cir. 1984), aff’g T.C. Memo. 1981-690; Jones v. Commissioner, 97 T.C. 7,
18 (1991). In the deficiency context, instructions by Congress to
“determine” or “redetermine” a deficiency created a “special statutory
procedure” related to the tax laws, in which the parties prepare a new
record. See, e.g., Porter, 130 T.C. at 119.
17

3. Innocent Spouse Relief

Before Congress adopted section 6015(e)(7) in 2019, 13 the Tax
Court also considered petitions for relief from joint and several liability
by reviewing a new record. Porter, 130 T.C. at 125.

When this Court initially determined whether it should review
determinations of relief from joint and several liability on the
administrative record, we paid particular attention to Congress’s use of
the word “determination” in section 6015:

We can presume that in 1998 when Congress chose
to use the word “determine” in section 6015, it did so in full
awareness of our long history of de novo review. If
Congress includes language from a prior statute in a new
statute, courts can presume that Congress intended the
longstanding legal interpretation of that language to be
applied to the new statute. Commissioner v. Estate of Noel,
380 U.S. 678, 680–681 (1965); United States v. 101.80
Acres, 716 F.2d 714, 721 (9th Cir. 1983). The use of the
word “determine” in section 6015(e)(1)(A) suggests that
Congress intended that we conduct trials de novo in
making our determinations under section 6015(f).

Porter, 130 T.C. at 119 (footnote omitted). That is, we read the verb
“determine” to indicate review on a record created after trial at the Tax
Court.

4. Whistleblower Awards

Congress has also charged the Tax Court with hearing appeals of
determinations regarding whistleblower awards under
section 7623(b)(4). Unlike in proceedings for redetermination of a
deficiency, a determination of an overpayment, or a determination
concerning innocent spouse relief, in the whistleblower context the Tax

13 Section 6015(e)(7), titled “Standard and scope of review,” provides that “[a]ny

review of a determination made under this section shall be reviewed de novo by the
Tax Court and shall be based upon—(A) the administrative record established at the
time of the determination, and (B) any additional newly discovered or previously
unavailable evidence.” See generally Thomas v. Commissioner, 160 T.C. 371 (2023)
(reviewed).
18

Court reviews the Whistleblower Office’s determination on the
administrative record. Kasper, 150 T.C. at 20.

When deciding its scope of review in whistleblower award
proceedings, the Court focused on Congress’s choice to use the word
“appeal” rather than “determine” in the provision that gives jurisdiction
to the Court. Id. at 17 (“If Congress’s use of ‘determine’ was as important
as our caselaw tells us it was, then the use of ‘appeal’ in a jurisdictional
grant is telling.”). In contrast to statutes governing deficiency cases and
relief from joint and several liability cases, the whistleblower statute
relies on the APA’s default rule. Id. at 18.

5. CDP Cases

In collection due process cases, Congress permits taxpayers to
seek “review” of an administrative determination at the Tax Court. 14
I.R.C. § 6330(d)(1). The Tax Court has previously held that it is not
required to apply a limited scope of review and may accept evidence
outside the administrative record in CDP cases. See Robinette v.
Commissioner, 123 T.C. 85, 101 (2004), rev’d, 439 F.3d 455 (8th Cir.
2006). But the U.S. Courts of Appeals for the First, Eighth, and Ninth
Circuits have concluded that, in CDP cases that are subject to an abuse
of discretion standard, our review is limited to the administrative
record. See Keller v. Commissioner, 568 F.3d 710, 718 (9th Cir. 2009),
aff’g in part T.C. Memo. 2006-166, and aff’g in part, vacating in part
decisions in related cases; Murphy v. Commissioner, 469 F.3d 27, 30–31
(1st Cir. 2006), aff’g 125 T.C. 301 (2005); Robinette v. Commissioner, 439
F.3d at 461–62.

6. Determinations Regarding Section 7345
Certifications

Section 7345(e) authorizes the Court “to determine whether the
certification was erroneous or whether the Commissioner has failed to
reverse the certification.” I.R.C. § 7345(e)(1) (emphasis added). And if
the Court “determines that such certification was erroneous,” the Court
may issue certain orders to the Secretary of the Treasury. I.R.C.
§ 7345(e)(2) (emphasis added).

In view of the history outlined above, we take Congress’s choice
of the word “determine” to be dispositive of the question of the proper

14 Before December 18, 2015, section 6330 allowed taxpayers to “appeal” the

IRS’s determination to the Tax Court.
19

scope of review. As we have recognized before, “[i]f Congress includes
language from a prior statute in a new statute, courts can presume that
Congress intended the longstanding legal interpretation of that
language to be applied to the new statute.” Porter, 130 T.C. at 119 (first
citing Commissioner v. Estate of Noel, 380 U.S. at 680–81; and then
citing 101.80 Acres, 716 F.2d at 721). Our decision in Porter was
rendered in 2008, long before Congress adopted section 7345(e) in 2015.
And the decisions involving our deficiency and overpayment jurisdiction
go much further back. Given these guideposts, we take Congress’s
choice to refer to our task as “determin[ing] whether the certification
was erroneous” to mean that (where necessary) we must make that
determination based on a record developed in this Court, including
(where appropriate) any evidence introduced at a trial, not simply the
record available to the Commissioner during the administrative
process. 15

We note, however, that in practical terms our holding is narrow
and unlikely to affect a great number of passport cases. As the Court’s
history with passport cases over almost a decade demonstrates, in most
cases under section 7345(e), the scope of review does not matter; the
outcome of the cases does not turn on the nature of the evidence we
should consider. Put another way, in most passport cases, there is no
need to look beyond the administrative record to resolve the issues in
dispute. See, e.g., Meduty, 160 T.C. at 529; Adams, 160 T.C. at 5–6
(2023); Rowen, 156 T.C. at 106; Pfirrman, T.C. Memo. 2025-22, at *4–6;
Belton v. Commissioner, T.C. Memo. 2023-13, at *9–10. The answer to
the contested matters in such cases is found in the IRS records with
respect to which there is unlikely to be a genuine factual dispute.
Accordingly, in such cases we anticipate no need to provide a taxpayer
an opportunity to introduce evidence at trial.

Moreover, the nature of the challenges that can be made in a
passport action is limited. As we have repeatedly observed, “we do not
have jurisdiction to review the liabilities underlying the certification of
a seriously delinquent tax debt.” Adams, 160 T.C. at 12 (citing Ruesch,
154 T.C. at 295–98 (reasoning that the text of section 7345(e)(1) contains

15 This conclusion is consistent with our holding in Kasper, 150 T.C. at 17,

where we found Congress’s use of the word “appeal” significant to the conclusion that
review was intended to occur on the administrative record. Here, of course, Congress
provided not for an appeal but for a determination.
20

no such jurisdictional grant)). Our holding here does not alter that
conclusion.

But where, as here, contested facts outside the record make a
difference to our determination, those facts must be found with the
benefit of a trial.

D. Service in the District Court Suit

Having considered the proper scope of review applicable to
Mr. Garcia’s passport action, we next consider his factual allegation—
that he was never served in the district court suit. Because service of
process touches on the validity of the August 11, 2014, default judgment
entered against Mr. Garcia, whether Mr. Garcia was served is a genuine
issue of material fact that prevents us from granting the Commissioner’s
Motion for Summary Judgment.

The Commissioner provided, in his First Supplement to Motion
for Summary Judgment, the declaration of Susan K. Bollman, senior
attorney at the IRS Office of Chief Counsel. Ms. Bollman attached a
“copy of the return of service attesting to the service of the summons and
complaint on petitioner” to her declaration. Signed by a revenue officer,
the return of service suggests that Mr. Garcia was served personally at
an IRS office in Houston.

Mr. Garcia’s response to the Commissioner’s Motion for Summary
Judgment, however, alleges that he “never received a notice of any kind
that the USA had filed a Complaint against him in District Court.”
Pet’r’s Resp. 1. As to the return of service, he asserts that “there is
absolutely no evidence that it was signed.” Id. Mr. Garcia made similar
allegations in open court at the March 2024 hearing.

The Court’s role, when considering a Motion for Summary
Judgment, is not to weigh competing evidence. Cf. Sundstrand Corp.,
98 T.C. at 520 (“If there exists any reasonable doubt as to the facts at
issue, the motion must be denied.”). Mr. Garcia’s Response, read in the
light of his statements at the hearing, raises a genuine issue of fact as
to whether he was served in 2014. Trial testimony would be proper to
resolve this issue. And, because this issue could determine whether
Mr. Garcia’s liabilities are “legally enforceable” within the meaning of
section 7345(b), we may not grant the Commissioner’s Motion.
21

III. Conclusion

For the reasons stated above, the Commissioner’s Motion for
Summary Judgment, as supplemented, will be denied.

To reflect the foregoing,

An appropriate order will be issued.

Reviewed by the Court.

KERRIGAN, C.J., and BUCH, NEGA, PUGH, ASHFORD,
URDA, COPELAND, JONES, GREAVES, MARSHALL, WEILER,
WAY, LANDY, ARBEIT, GUIDER, JENKINS, and FUNG, JJ., agree
with this opinion of the Court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11053228. Public record. Not legal advice.