The opinion
T.C. Memo. 2007-24
UNITED STATES TAX COURT
DANIEL O. ABELEIN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 24804-04L. Filed February 6, 2007.
Terri A. Merriam, for petitioner.
Gregory M. Hahn and Thomas N. Tomashek, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
HAINES, Judge: Petitioner filed a petition with this Court
in response to a Notice of Determination Concerning Collection
Action(s) Under Section 6330 (notice of determination) for 1982
through 1986.1 Pursuant to section 6330(d), petitioner seeks
1
Unless otherwise indicated, all section references are to
(continued...)
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review of respondent’s determination. The issue for decision is
whether respondent abused his discretion in sustaining the
proposed collection action.2
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The first, second, third, fourth, and fifth stipulations of fact
and the attached exhibits are incorporated herein by this
reference.3
1
(...continued)
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure. Amounts
are rounded to the nearest dollar.
2
Petitioner also disputes respondent’s determination that
he is liable for the increased rate of interest on tax-motivated
transactions under sec. 6621(c). As to this dispute, the parties
filed a stipulation to be bound by the Court’s determination in
Ertz v. Commissioner, T.C. Memo. 2007-15, which involves a
similar issue.
3
Respondent reserved relevancy objections to many of the
exhibits attached to the stipulations of fact. Fed. R. Evid. 402
provides the general rule that all relevant evidence is
admissible, while evidence which is not relevant is not
admissible. Fed. R. Evid. 401 defines relevant evidence as
“evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
While the relevance of some exhibits is certainly limited, we
find that the exhibits meet the threshold definition of relevant
evidence and are admissible. The Court will give the exhibits
only such consideration as is warranted by their pertinence to
the Court’s analysis of petitioner’s case.
Respondent also objected to many of the exhibits on the
basis of hearsay. Even if we were to receive those exhibits into
evidence, they would have no impact on our findings of fact or on
the outcome of this case.
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Petitioner resided in Boring, Oregon, when he filed his
petition. Petitioner has a highschool education, worked as an
electrician for many years, and is now self-employed as a general
contractor building houses in the Greater Portland, Oregon, area.
At the time of trial, petitioner was 55 years old.
In 1985, petitioner became a partner in Durham Genetic
Engineering, Ltd. 1985-1 (DGE 85-1) and in Shorthorn Genetic
Engineering, Ltd. 1985-1 (SGE 85-1), cattle breeding partnerships
organized and operated by Walter J. Hoyt III (Hoyt).4
From about 1971 through 1998, Hoyt organized, promoted, and
operated more than 100 cattle breeding partnerships. Hoyt also
organized, promoted, and operated sheep breeding partnerships.
From 1983 to his subsequent removal by the Tax Court in 2000
through 2003, Hoyt was the tax matters partner of each Hoyt
partnership. From approximately 1980 through 1997, Hoyt was a
licensed enrolled agent, and as such, he represented many of the
Hoyt partners before the Internal Revenue Service (IRS). In
4
The parties stipulated that petitioner became a partner
in DGE 85-1 and SGE 85-1 in 1984. However, petitioner testified,
and the rest of the record indicates, that he became a partner in
1985.
Petitioner was also a partner in other Hoyt-related
partnerships identified as “DGE 1986-A” and “FF #4”. The details
of these partnerships are not in the record. Though unclear, it
appears that all adjustments made to petitioner’s income tax
liability for 1982-86 were attributable to his involvement in DGE
85-1 and SGE 85-1 only.
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1998, Hoyt’s enrolled agent status was revoked. Hoyt was
convicted of various criminal charges in 2000.5
Beginning in 1985 until at least 1986, petitioner claimed
losses and credits on his Federal income tax returns arising from
his involvement in the Hoyt partnerships. Petitioner
also carried back unused investment credits to 1982, 1983, and
1984. As a result of these losses and credits, petitioner
reported overpayments of tax for 1982 through 1986 and received
refunds in the amounts claimed.
5
Petitioner asks the Court to take judicial notice of
certain “facts” in other Hoyt-related cases and apply judicial
estoppel to “facts respondent has asserted in previous [Hoyt-
related] litigation”. We do neither.
A judicially noticeable fact is one not subject to
reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned. Fed. R. Evid.
201(b). Petitioner is not asking the Court to take judicial
notice of facts that are not subject to reasonable dispute.
Instead, petitioner is asking the Court to take judicial notice
of the truth of assertions made by taxpayers and the Commissioner
in other Hoyt-related cases. Such assertions are not the proper
subject of judicial notice.
The doctrine of judicial estoppel prevents a party from
asserting in a legal proceeding a claim that is inconsistent with
a position successfully taken by that party in a previous
proceeding. New Hampshire v. Maine, 532 U.S. 742, 749 (2001).
Among the requirements for judicial estoppel to be invoked, a
party’s current litigating position must be “clearly
inconsistent” with a prior litigating position. Id. at 750-751.
Petitioner has failed to identify any clear inconsistencies
between respondent’s current position and his position in any
previous litigation.
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Respondent issued notices of final partnership
administrative adjustments (FPAAs) to DGE 85-1 and SGE 85-1 for
their 1985 and 1986 taxable years.6 After completion of the
partnership-level proceedings, respondent determined deficiencies
in petitioner’s income tax for his 1982 through 1986 tax years.
On January 24, 2002, respondent issued petitioner a Final
Notice--Notice of Intent to Levy and Notice of Your Right to a
Hearing (final notice). The final notice included petitioner’s
outstanding tax liabilities for 1982 through 1986.
On February 12, 2002, petitioner submitted a Form 12153,
Request for a Collection Due Process Hearing. Petitioner argued
that the proposed levy was inappropriate and that an offer-in-
compromise should be accepted.
Petitioner’s case was assigned to Settlement Officer Linda
Cochran (Ms. Cochran). Ms. Cochran scheduled a telephone section
6330 hearing for March 23, 2004. During the hearing,
petitioner’s representative, Terri A. Merriam (Ms. Merriam),
requested that petitioner be given more time to submit
information to be considered. Ms. Cochran extended petitioner’s
deadline for submitting information to be considered to April 6,
2004.
6
The FPAAs and other information specific to DGE 85-1’s
and SGE 85-1’s partnership-level proceedings are not in the
record.
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On April 5, 2004, petitioner submitted to Ms. Cochran a Form
656, Offer in Compromise, a Form 433-A, Collection Information
Statement for Wage Earners and Self-Employed Individuals, one
letter explaining the offer amount, and three letters setting out
in detail petitioner’s position regarding the offer-in-
compromise. Petitioner’s letters included several exhibits.
The Form 656 indicated that petitioner was seeking an
effective tax administration offer-in-compromise based on public
policy and equity grounds. Petitioner offered to pay $129,230 to
compromise his outstanding tax liabilities for 1982 through
1996.7
On the Form 433-A, petitioner reported assets worth
approximately $420,000 and outstanding liabilities of
approximately $264,000. Petitioner also reported gross monthly
income of $21,728 and monthly living expenses of $14,382.
In the letter explaining the offer amount, petitioner stated
that he was offering to pay $129,230 “for all Hoyt-related years
to be paid in twenty-four months * * *. The amount accounts for
all the tax liability for 1982 through 1998 * * * and regular
interest through April 15, 1993. This offer assumes that no Tax
Motivated Transaction (TMT) interest is imposed”.
7
The details of petitioner’s 1986-96 tax years are not in
the record.
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In the remaining three letters, petitioner alleged that he
was a victim of Hoyt’s fraud and asserted various arguments
regarding the appropriateness of an offer-in-compromise.
On May 21, 2004, petitioner submitted another letter to Ms.
Cochran, which included 42 exhibits not provided with the
previous letters.
On November 23, 2004, respondent issued petitioner a notice
of determination. Respondent determined that petitioner had:
(1) Total net realizable equity in his assets of $156,053; (2) an
amount collectible from future income of $1,243,381,8 and (3) a
reasonable collection potential of $1,415,173. Respondent
determined that petitioner was not entitled to an effective tax
administration offer-in-compromise based on public policy or
equity ground because the case “fails to meet the criteria for
such consideration”. Respondent determined that petitioner did
not offer an acceptable collection alternative and that all
requirements of law and administrative procedure had been met.
Respondent concluded that the proposed collection action could
proceed.
In response to the notice of determination, petitioner filed
a petition with this Court on December 29, 2004.
8
Respondent determined that petitioner had monthly
disposable income of $15,739 and multiplied that amount by 79,
the number of months remaining on the collection statute.
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OPINION
Section 7122(a) provides that “The Secretary may compromise
any civil * * * case arising under the internal revenue laws”.
Whether to accept an offer-in-compromise is left to the
Secretary’s discretion. Fargo v. Commissioner, 447 F.3d 706, 712
(9th Cir. 2006), affg. T.C. Memo. 2004-13; sec. 301.7122-1(c)(1),
Proced. & Admin. Regs.
The regulations under section 7122(a) set forth three
grounds for the compromise of a tax liability: (1) Doubt as to
liability; (2) doubt as to collectibility; or (3) promotion of
effective tax administration. Sec. 301.7122-1(b), Proced. &
Admin. Regs. Doubt as to liability and doubt as to
collectibility are not at issue in this case.9
As pertinent here, the Secretary may compromise a tax
liability on the ground of effective tax administration when:
(1) Exceptional circumstances exist such that collection of the
full liability would undermine public confidence that the tax
laws are being administered in a fair and equitable manner; and
(2) compromise of the liability would not undermine compliance by
9
While petitioner disputes his liability for sec. 6621(c)
interest, see supra note 2, he did not raise doubt as to
liability as a grounds for compromise.
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taxpayers with the tax laws.10 Sec. 301.7122-1(b)(3), Proced. &
Admin. Regs.
Petitioner proposed an offer-in-compromise based on
effective tax administration, arguing that exceptional
circumstances existed such that collection of the full liability
would undermine public confidence that the tax laws are being
administered in a fair and equitable manner. Respondent
determined that petitioner’s offer-in-compromise did not meet the
criteria for an effective tax administration offer-in-compromise.
Because the underlying tax liability is not at issue, our
review under section 6330 is for abuse of discretion. See Sego
v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner,
114 T.C. 176, 182 (2000). This standard does not ask us to
decide whether in our own opinion petitioner’s offer-in-
compromise should have been accepted, but whether respondent’s
rejection of the offer-in-compromise was arbitrary, capricious,
or without sound basis in fact or law. Woodral v. Commissioner,
112 T.C. 19, 23 (1999); Keller v. Commissioner, T.C. Memo. 2006-
166; Fowler v. Commissioner, T.C. Memo. 2004-163.
10
The regulations also provide that the Secretary may
compromise a liability on the ground of effective tax
administration when collection of the full liability will create
economic hardship. See sec. 301.7122-1(b), Proced. & Admin.
Regs. While petitioner disputes Ms. Cochran’s determination of
his reasonable collection potential, he does not argue that
collection of the full liability would create economic hardship.
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A. Exceptional Circumstances
Petitioner asserts that “There are so many unique and
equitable facts in this case that this case is an exceptional
circumstance” and respondent abused his discretion by not
accepting those facts as grounds for an offer-in-compromise. In
support of his assertion, petitioner argues: (1) The
longstanding nature of this case justifies acceptance of the
offer-in-compromise; (2) respondent’s reliance on an example in
the Internal Revenue Manual (IRM) was improper; and (3)
respondent failed to consider petitioner’s other “equitable
facts”.
1. Longstanding Case
Petitioner asserts that the legislative history requires
respondent to resolve “longstanding” cases by forgiving penalties
and interest which would otherwise apply. Petitioner argues
that, because this is a longstanding case, respondent abused his
discretion by failing to accept their offer-in-compromise.
Petitioner’s argument is essentially the same considered and
rejected by the Court of Appeals for the Ninth Circuit in Fargo
v. Commissioner, supra at 711-712. See also Keller v.
Commissioner, supra; Barnes v. Commissioner, T.C. Memo. 2006-150.
We reject petitioner’s argument for the same reasons stated by
the Court of Appeals. We add that petitioner’s counsel
participated in the appeal in Fargo as counsel for the amici. On
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brief, petitioner suggests that the Court of Appeals knowingly
wrote its opinion in Fargo in such a way as to distinguish that
case from the cases of counsel’s similarly situated clients
(e.g., petitioner), and to otherwise allow those clients’
liabilities for penalties and interest to be forgiven. We do not
read the opinion of the Court of Appeals in Fargo to support that
conclusion. See Keller v. Commissioner, supra; Barnes v.
Commissioner, supra.
Respondent’s rejection of petitioner’s longstanding case
argument was not arbitrary or capricious.
2. The IRM Example
Petitioner argues that respondent erred when he determined
that petitioner was not entitled to relief based on the second
example in IRM section 5.8.11.2.2(3). Petitioner asserts that
many of the facts in this case were not present in the example,
and, therefore, any reliance on the example was misplaced.
Petitioner’s argument is not persuasive.
IRM section 5.8.11.2.2(3) discusses effective tax
administration offers-in-compromise based on equity and public
policy grounds and states in the second example:
In 1983, the taxpayer invested in a nationally marketed
partnership which promised the taxpayer tax benefits
far exceeding the amount of the investment.
Immediately upon investing, the taxpayer claimed
investment tax credits that significantly reduced or
eliminated the tax liabilities for the years 1981
through 1983. In 1984, the IRS opened an audit of the
partnership under the provisions of the Tax Equity and
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Fiscal Responsibility Act of 1982 (TEFRA). After
issuance of the Final Partnership Administrative
Adjustment (FPAA), but prior to any proceedings in Tax
Court, the IRS made a global settlement offer in which
it offered to concede a substantial portion of the
interest and penalties that could be expected to be
assessed if the IRS’s determinations were upheld by the
court. The taxpayer rejected the settlement offer.
After several years of litigation, the partnership
level proceeding eventually ended in Tax Court
decisions upholding the vast majority of the
deficiencies asserted in the FPAA on the grounds that
the partnership’s activities lacked economic substance.
The taxpayer has now offered to compromise all the
penalties and interest on terms more favorable than
those contained in the prior settlement offer, arguing
that TEFRA is unfair and that the liabilities accrued
in large part due to the actions of the Tax Matters
Partner (TMP) during the audit and litigation. Neither
the operation of the TEFRA rules nor the TMP’s actions
on behalf of the taxpayer provide grounds to compromise
under the equity provision of paragraph (b)(4)(i)(B) of
this section. Compromise on those grounds would
undermine the purpose of both the penalty and interest
provisions at issue and the consistent settlement
principles of TEFRA. * * *
1 Administration, Internal Revenue Manual (CCH), sec.
5.8.11.2.2(3), at 16,378. We agree with respondent that the
example presents similar circumstances to those in petitioner’s
case, including: Petitioner invested in TEFRA partnerships in
the early 1980s; petitioner’s outstanding tax liability is
related to his investment in the partnerships; FPAAs were issued
to the partnerships; after several years of litigation, Tax Court
decisions upheld the vast majority of the deficiencies asserted
in the FPAAs; and petitioner argues that interest has accumulated
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as the result of delays by and other actions of the tax matters
partner.
Petitioner is also correct in asserting that not all the
facts in his case are present in the example. However, it is
unreasonable to expect that facts in an example be identical to
facts of a particular case before the example can be relied upon.
The IRM example was only one of many factors respondent
considered. Given the similarities to petitioner’s case,
respondent’s reliance on that example was not arbitrary or
capricious.
3. Petitioner’s Other “Equitable Facts”
Petitioner argues that respondent abused his discretion by
failing to consider the other “equitable facts” of this case.
Petitioner’s “equitable facts” include reference to: (1)
Petitioner’s reliance on Bales v. Commissioner, T.C. Memo. 1989-
568;11 (2) petitioner’s reliance on Hoyt’s enrolled agent status;
11
Bales v. Commissioner, T.C. Memo. 1989-568, involved
deficiencies determined against various investors in several Hoyt
partnerships. This Court found in favor of the investors on
several issues, stating that “the transaction in issue should be
respected for Federal income tax purposes.” Taxpayers in many
Hoyt-related cases have used Bales as the basis for a reasonable
cause defense to accuracy-related penalties. This argument has
been uniformly rejected by this Court and by the Courts of
Appeals for the Sixth, Ninth, and Tenth Circuits. See, e.g.,
Hansen v. Commissioner, 471 F.3d 1021 (9th Cir. 2006), affg. T.C.
Memo. 2004-269; Mortensen v. Commissioner, 440 F.3d 375, 390-391
(6th Cir. 2006), affg. T.C. Memo. 2004-279; Van Scoten v.
Commissioner, 439 F.3d 1243, 1254-1256 (10th Cir. 2006), affg.
T.C. Memo. 2004-275.
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(3) Hoyt’s criminal conviction; (4) Hoyt’s fraud on petitioner;
and (5) other letters and cases. The basic thrust of
petitioner’s argument is that he was defrauded by Hoyt and that,
if he were held responsible for penalties and interest incurred
as a result of their investment in a tax shelter, it would be
inequitable and against public policy. Petitioner’s argument is
not persuasive.
While the regulations do not set forth a specific standard
for evaluating an offer-in-compromise based on claims of public
policy or equity, the regulations contain two examples. See sec.
301.7122-1(c)(3)(iv), Examples (1) and (2), Proced. & Admin.
Regs. The first example describes a taxpayer who is seriously
ill and unable to file income tax returns for several years. The
second example describes a taxpayer who received erroneous advice
from the Commissioner as to the tax effect of the taxpayer’s
actions. Neither example bears any resemblance to this case.
Unlike the exceptional circumstances exemplified in the
regulations, petitioner’s situation is neither unique nor
exceptional in that his situation mirrors those of numerous other
taxpayers who claimed tax shelter deductions in the 1980s and
1990s. See Keller v. Commissioner, T.C. Memo. 2006-166; Barnes
v. Commissioner, T.C. Memo. 2006-150.
Of course, the examples in the regulations are not meant to
be exhaustive, and petitioner has a more sympathetic case than
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the taxpayers in Fargo v. Commissioner, 447 F.3d at 714, for whom
the Court of Appeals for the Ninth Circuit noted that “no
evidence was presented to suggest that Taxpayers were the subject
of fraud or deception”. Such considerations, however, have not
kept this Court from finding investors in the Hoyt tax shelters
to be liable for penalties and interest, nor have they prevented
the Courts of Appeals for the Sixth, Ninth, and Tenth Circuits
from affirming our decisions to that effect. See Hansen v.
Commissioner, 471 F.3d 1021 (9th Cir. 2006), affg. T.C. Memo.
2004-269; Mortensen v. Commissioner, 440 F.3d 375 (6th Cir.
2006), affg. T.C. Memo. 2004-279; Van Scoten v. Commissioner, 439
F.3d 1243 (10th Cir. 2006), affg. T.C. Memo. 2004-275.
Ms. Cochran testified that she considered all of Ms.
Merriam’s and petitioner’s assertions, including the numerous
letters and exhibits. Nevertheless, Ms. Cochran determined that
petitioner did not qualify for an offer-in-compromise.
The mere fact that petitioner’s “equitable facts” did not
persuade respondent to accept their offer-in-compromise does not
mean that those assertions were not considered. The notice of
determination and Ms. Cochran’s testimony demonstrate
respondent’s clear understanding and careful consideration of the
facts and circumstances of petitioner’s case. We find that
respondent’s determination that the “equitable facts” did not
justify acceptance of petitioner’s offer-in-compromise was not
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arbitrary or capricious, and thus it was not an abuse of
discretion.
We also find that compromising petitioner’s case on grounds
of public policy or equity would not enhance voluntary compliance
by other taxpayers. A compromise on that basis would place the
Government in the unenviable role of an insurer against poor
business decisions by taxpayers, reducing the incentive for
taxpayers to investigate thoroughly the consequences of
transactions into which they enter. It would be particularly
inappropriate for the Government to play that role here, where
the transaction at issue is participation in a tax shelter.
Reducing the risks of participating in tax shelters would
encourage more taxpayers to run those risks, thus undermining
rather than enhancing compliance with the tax laws. See Barnes
v. Commissioner, supra.
B. Petitioner’s Other Arguments
1. Compromise of Penalties and Interest in an Effective
Tax Administration Offer-in-Compromise
Petitioner advances a number of arguments focusing on his
assertion that respondent determined that penalties and interest
could not be compromised in an effective tax administration
offer-in-compromise. Petitioner argues that such a determination
is contrary to legislative history and is therefore an abuse of
discretion. These arguments are not persuasive.
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The regulations under section 7122 provide that “If the
Secretary determines that there are grounds for compromise under
this section, the Secretary may, at the Secretary’s discretion,
compromise any civil * * * liability arising under the internal
revenue laws”. Sec. 301.7122-1(a)(1), Proced. & Admin. Regs. In
other words, the Secretary may compromise a taxpayer’s tax
liability if he determines that grounds for a compromise exist.
If the Secretary determines that grounds do not exist, the amount
offered (or the way in which the offer is calculated) need not be
considered.
Petitioner’s arguments regarding the compromise of penalties
and interest do not relate to whether there are grounds for a
compromise. Instead, these arguments go to whether the amount
petitioner offered to compromise his tax liability was
acceptable. As addressed above, respondent’s determination that
the facts and circumstances of petitioner’s case did not warrant
acceptance of their offer-in-compromise was not arbitrary or
capricious and was thus not an abuse of discretion. Because no
grounds for compromise exist, we need not address whether
respondent can or should compromise penalties and interest in an
effective tax administration offer-in-compromise. See Keller v.
Commissioner, supra.
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2. Information Sufficient for the Court To Review
Respondent’s Determination
Petitioner argues that respondent failed to provide the
Court with sufficient information “so that this Court can conduct
a thorough, probing, and in-depth review of respondent’s
determinations.” Petitioner’s argument is without merit.
Generally, a taxpayer bears the burden of proving the
Commissioner’s determinations incorrect. Rule 142(a)(1); Welch
v. Helvering, 290 U.S. 111, 115 (1933).12 The burden was on
petitioner to show that respondent abused his discretion. The
burden was not on respondent to provide enough information to
show that he did not abuse his discretion. Nevertheless, we find
that we had more than sufficient information to review
respondent’s determination.
3. Deadline for Submission of Information
Petitioner argues that Ms. Cochran abused her discretion by
not allowing his counsel additional time to submit information to
be considered. Petitioner’s argument is not supported by the
record.
12
While sec. 7491 shifts the burden of proof and/or the
burden of production to the Commissioner in certain
circumstances, this section is not applicable in this case
because respondent’s examination of petitioner’s returns did not
commence after July 22, 1998. See Internal Revenue Service
Restructuring and Reform Act of 1998, Pub. L. 105-206, sec.
3001(c), 112 Stat. 727.
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Petitioner asserts that he was “initially only given four
weeks” to provide all information. However, he ignores the fact
that Ms. Cochran granted his requested extension and allowed him
until April 6, 2004, to submit information. Additionally,
petitioner has not identified any documents or other information
that he believes Ms. Cochran should have considered but that he
was unable to produce because of the deadline for submission.
Given the thoroughness and the amount of information submitted,
it is unclear why petitioner needed additional time. We do not
believe that Ms. Cochran abused her discretion by establishing a
deadline for the submission of information.
4. Efficient Collection Versus Intrusiveness
Petitioner argues that respondent failed to balance the need
for efficient collection of taxes with the legitimate concern
that the collection action be no more intrusive than necessary.
See sec. 6330(c)(3)(C). Petitioner’s argument is not supported
by the record.
Petitioner has an outstanding tax liability. In his section
6330 hearing, petitioner proposed only an offer-in-compromise.
Because no other collection alternatives were proposed, there
were not less intrusive means for respondent to consider. We
find that respondent balanced the need for efficient collection
of taxes with petitioner’s legitimate concern that collection be
no more intrusive than necessary.
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C. Conclusion
Petitioner has not shown that respondent’s determination was
arbitrary or capricious, or without sound basis in fact or law.
For all of the above reasons, we hold that respondent’s
determination was not an abuse of discretion, and respondent may
proceed with the proposed collection action.
In reaching our holdings herein, we have considered all
arguments made, and, to the extent not mentioned above, we find
them to be moot, irrelevant, or without merit.
To reflect the foregoing,
Decision will be
entered for respondent.