Hoyle v. Commissioner

MARTIN DAVID HOYLE, PETITIONER v. COMMISSIONER

OF INTERNAL REVENUE, RESPONDENT *

Docket No. 7217–04L. Filed May 23, 2011.

After this Court’s remand of the instant case for R’s

Appeals Office to determine, pursuant to I.R.C. sec. 6330(c)(1),

whether R properly sent P a notice of deficiency, R seeks, by

way of a motion in limine, to have the administrative record

from the remand hearing admitted into evidence. P objects on

three grounds: (1) The matters in the record on remand were

not considered at the original hearing; (2) R’s counsel and the

settlement officer engaged in improper ex parte contact; and

(3) documents in the administrative record on remand are

inadmissible hearsay. During the pendency of the instant

case, R refiled the notice of Federal tax lien (NFTL) in issue.

P moves to dismiss respondent’s refiled NFTL. Held: At the

hearing on remand, R’s settlement officer was not limited to

a consideration of matters considered by the Appeals officer in

the original administrative hearing. Held, further, R’s counsel

and the settlement officer did not engage in prohibited ex

parte contact. Held, further, the administrative record, once it

has been authenticated, is admissible to show information

available to the Appeals Office during the administrative

consideration of petitioner’s case on remand. Until documents

from that record are offered to prove the truth of the matters

asserted therein, it is unnecessary to rule on P’s hearsay

objection. Held, further, R may refile the NFTL.

Martin David Hoyle, pro se.

Beth A. Nunnink, for respondent.

SUPPLEMENTAL OPINION

WELLS, Judge: The instant case is before the Court on

respondent’s motion in limine and petitioner’s motion to dis-

miss respondent’s lien. 1 We must decide: (1) Whether the

* This Opinion supplements Hoyle v. Commissioner, 131 T.C. 197 (2008).

1 Petitioner has filed numerous other motions, including a motion to dismiss, to bar evidence

or to set a time limit for response filed on Dec. 15, 2008; motion to dismiss and to bar evidence

filed on Mar. 19, 2009; motion for summary judgment filed on Oct. 5, 2009; and motion to dis-

Continued

463

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464 136 UNITED STATES TAX COURT REPORTS (463)

proposed Supplemental Stipulation of Facts and exhibits

should be admitted into evidence; and (2) whether

respondent may refile a notice of Federal tax lien (NFTL)

during the pendency of these proceedings.

Background

Many of the relevant facts are set forth in our prior

Opinion in the instant case, Hoyle v. Commissioner, 131 T.C.

197 (2008) (prior Opinion), and are incorporated by reference.

Additionally, some of the facts discussed in this Opinion are

taken from the parties’ moving papers for the purpose of

ruling on respondent’s motion in limine and petitioner’s

motions.

At the time he filed the petition, petitioner resided in Lou-

isiana.

The record contains a notice of deficiency dated March 28,

1996, for petitioner’s 1993 tax year. On August 26, 1996,

respondent assessed the amounts stated in the notice of defi-

ciency.

On September 12, 2002, respondent sent petitioner a

Notice of Federal Tax Lien Filing and Your Right to a

Hearing Under IRC 6320 with respect to petitioner’s unpaid

tax liability for 1993. On or around September 17, 2002,

respondent filed an NFTL in Jefferson Parish, Louisiana

(original NFTL). The original NFTL indicated, on its face, that

unless refiled by September 25, 2006, the original NFTL

would operate as a certificate of release of lien as defined in

section 6325(a). 2 Petitioner timely requested a review of the

original NFTL with respondent’s Appeals Office.

On March 31, 2004, respondent’s Appeals Office sent to

petitioner a notice of determination upholding the original

NFTL. Petitioner timely filed a petition with this Court.

On December 3, 2008, we issued our prior Opinion. In our

prior Opinion we stated:

we are unable to ascertain the basis for the Appeals officer’s verification

that all requirements of applicable law were met. Consequently, we will

remand this case to the Appeals Office for it to clarify the record as to

miss and to bar evidence filed on Oct. 5, 2009. These motions contain many of the same argu-

ments petitioner made in his objection to respondent’s motion in limine. On the basis of our

holding in the instant Opinion, we will deny petitioner’s motions.

2 Unless otherwise indicated, section references are to the Internal Revenue Code of 1986, as

amended, and Rule references are to the Tax Court Rules of Practice and Procedure.

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(463) HOYLE v. COMMISSIONER 465

what the Appeals officer relied upon in determining that the notice of defi-

ciency was properly sent to petitioner. [Hoyle v. Commissioner, supra at

205; fn. ref. omitted.]

In a footnote, we noted: ‘‘We are remanding this case in order

for the Appeals Office to ‘examine underlying documents’ and

make a record of what was relied upon in making the deter-

mination that the notice of deficiency was ‘properly sent’.’’ Id.

n.7 (quoting Chief Counsel Notice CC–2006–19 (Aug. 18,

2006)). On December 19, 2008, we issued an order stating

that ‘‘this case is remanded to respondent’s Office of Appeals

for the purpose of clarifying the record regarding the issue of

what the Appeals officer relied upon in determining that the

notice of deficiency was properly sent to petitioner.’’

On December 22, 2008, respondent’s counsel Beth Nunnink

(Ms. Nunnink) sent a letter to Supervisory Revenue Officer

Clifford Whitely (Mr. Whitely) regarding the instant case. In

that letter, Ms. Nunnink stated that she was forwarding the

administrative file to which she had added a copy of the U.S.

Postal Service certified mail list dated March 28, 1996, which

lists notices of deficiency sent to petitioner and Wayne

Leland, to whom petitioner had delegated his power of

attorney (certified mail list). Petitioner was sent a copy of the

December 22, 2008, letter. On January 20, 2009, Settlement

Officer Magee (Ms. Magee) was assigned to the case.

Ms. Nunnink and Ms. Magee had several conversations

after the remand of this case to respondent’s Appeals Office.

On January 20, 2009, Ms. Magee and Ms. Nunnink conferred

by telephone and email regarding the case. In those commu-

nications Ms. Nunnink advised Ms. Magee to give petitioner

a face-to-face conference and to decide four issues: (1)

Whether the notice of deficiency was sent to petitioner’s last

known address; (2) whether the assessment was valid; (3)

whether petitioner could raise the underlying liability on the

ground that he had not received the notice of deficiency; and

(4) the items relied on to make the foregoing determinations.

On January 23, 2009, Ms. Magee advised Ms. Nunnink

that she would have a face-to-face conference with petitioner

on February 19, 2009. Ms. Nunnink advised Ms. Magee that

petitioner’s amended return for his 1993 tax year had been

admitted into evidence at trial. Ms. Magee and Ms. Nunnink

conferred regarding status reports to the Court. Ms. Nunnink

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466 136 UNITED STATES TAX COURT REPORTS (463)

reviewed Ms. Magee’s draft supplemental notice of deter-

mination to ascertain whether all issues the Court had

required to be addressed were included in Ms. Magee’s deter-

mination and that all explanations were complete.

On February 23, 2009, Ms. Magee asked Ms. Nunnink a

legal question: If petitioner had previously received a notice

of deficiency, could he still raise his underlying tax liability

as an issue now? After some research on the subject, Ms.

Nunnink advised Ms. Magee that if petitioner had received

a notice, he could no longer contest his underlying liability.

On February 19, 2009, Ms. Magee discovered that the re-

filing date stated on the original NFTL had passed. Through-

out several conversations Ms. Nunnink kept Ms. Magee

informed about the refiling of the NFTL, and they discussed

who should speak with petitioner regarding the refiling. On

March 3, 2009, respondent filed Form 12474–A, Revocation of

Certificate of Release of Federal Tax Lien, with the Clerk of

Court of Jefferson Parish, Louisiana. Immediately thereafter,

respondent refiled the NFTL for petitioner’s 1993 tax year

with the Clerk of Court of Jefferson Parish, Louisiana.

On June 26, 2009, Ms. Magee issued a Supplemental

Notice of Determination Concerning Collection Action(s)

Under Section 6320 and/or 6330.

On March 19, 2010, respondent sent to petitioner a supple-

mental stipulation of facts to which was attached the record

from the hearing on remand with Ms. Magee, including the

certified mail list. Petitioner raised objections to the stipula-

tion, and on May 3, 2010, respondent filed the instant motion

in limine.

Discussion

Respondent contends that we should rule in limine that

the following documents will be admitted into the record: (1)

The original administrative record as submitted into evi-

dence at trial, before the issuance of our prior Opinion

remanding the case to respondent’s Appeals Office; (2) sev-

eral previous filings made with the Court; 3 and (3) several

3 These filings include the petition filed on Apr. 30, 2004, the answer filed on June 29, 2004,

respondent’s motion for summary judgment filed on Sept. 26, 2006, petitioner’s response to re-

spondent’s motion for summary judgment filed on Oct. 25, 2006, petitioner’s pretrial memo-

randum filed on May 21, 2007, respondent’s opening brief filed on Aug. 6, 2007, petitioner’s an-

swering brief filed on Sept. 20, 2007, respondent’s reply brief filed on Nov. 14, 2007, and our

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(463) HOYLE v. COMMISSIONER 467

documents that Ms. Magee created or considered on remand

(administrative record on remand). Evidence previously

admitted at trial, like the trial transcript itself, is already in

the record, and we therefore need not address its admissi-

bility. The pleadings, motions, briefs, etc., previously filed

with the Court also are part of the record in this case, and

unless and until they are offered into evidence for a par-

ticular purpose, we need not address their admissibility as

evidence. As to the administrative record on remand,

respondent contends that it is admissible under the business

records exception to the hearsay rule. See Fed. R. Evid.

803(6). 4

Petitioner contends that the administrative record on

remand is not admissible into evidence because the matters

therein were not considered at the original administrative

hearing before remand, that Ms. Nunnink and Ms. Magee

had improper ex parte contact regarding the hearing on

remand, and that the documents in the administrative record

on remand, specifically a certified mail list showing the

mailing of the notice of deficiency in issue to petitioner and

to his representative, are inadmissible hearsay on account of

a lack of trustworthiness. See id.

A taxpayer is entitled to a single hearing under section

6320 with respect to the year to which the unpaid liability

relates. Sec. 6320(b)(2); Freije v. Commissioner, 131 T.C. 1,

5 (2008), affd. 325 Fed. Appx. 448 (7th Cir. 2009); see also

Kelby v. Commissioner, 130 T.C. 79, 86 (2008) (similar

holding for section 6330 cases). When this Court remands a

case to the Appeals Office, the hearing on remand is a

supplement to the taxpayer’s original section 6320 hearing.

Kelby v. Commissioner, supra at 86; see also Olsen v. United

States, 414 F.3d 144, 155 (1st Cir. 2005) (‘‘In the event the

administrative record is found inadequate for judicial review,

‘the proper course, except in rare circumstances, is to remand

to the agency for additional investigation or explanation’.’’

(quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744

(1985))). The hearing on remand provides the parties with

the opportunity to complete the initial section 6320 hearing

while preserving the taxpayer’s right to receive judicial

prior Opinion in the instant case, Hoyle v. Commissioner, 131 T.C. 197 (2008).

4 Proceedings in the Tax Court are generally governed by the Federal Rules of Evidence. Rule

143(a).

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468 136 UNITED STATES TAX COURT REPORTS (463)

review of the ultimate administrative determination. Kelby v.

Commissioner, supra at 86; see also Wadleigh v. Commis-

sioner, 134 T.C. 280, 299 (2010) (similar result in a section

6330 case). A corollary to the fact that the taxpayer may

receive only one hearing is that the Commissioner’s Appeals

Office makes a single determination. Kelby v. Commissioner,

supra at 86. When this Court remands a case to the Appeals

Office and it comes back to us after a supplemental deter-

mination is issued, we review the supplemental determina-

tion. Id.

We remanded the instant case for the Appeals Office to

determine, as a part of its verification ‘‘that the requirements

of any applicable law * * * have been met’’, sec. 6330(c)(1),

whether a notice of deficiency was properly mailed to peti-

tioner. If the notice of deficiency was not properly mailed, the

assessment of tax would be invalid. See sec. 6213(a); Hoyle

v. Commissioner, 131 T.C. at 205. The act of mailing may be

proven by documentary evidence of mailing. Coleman v.

Commissioner, 94 T.C. 82, 91 (1990). We have held that exact

compliance with Postal Service Form 3877 mailing proce-

dures raises a presumption of official regularity in favor of

the Commissioner and is sufficient, absent evidence to the

contrary, to establish that a notice of deficiency was properly

mailed. Id.; see also United States v. Zolla, 724 F.2d 808, 810

(9th Cir. 1984). Ms. Magee was not limited to what the

original Appeals officer considered. She was required to con-

sider, pursuant to this Court’s order of remand, whether a

notice of deficiency had been properly sent to petitioner.

Hoyle v. Commissioner, supra at 205; see also Kelby v.

Commissioner, supra at 86. The administrative record on

remand contains such evidence in the form of a certified mail

list. The certified mail list appears to include the same

information found on Postal Service Form 3877. The

administrative record on remand and the certified mail list

are necessary for our consideration of the supplemental

determination by respondent’s Appeals Office on remand and

will at least be admitted into evidence for the limited pur-

pose (as allowed by rule 105 of the Federal Rules of Evi-

dence) of showing the proceedings on remand—a purpose for

which they are not, strictly speaking, offered to prove the

truth of the matter asserted therein. Consequently, the

administrative record on remand shall be admitted as long as

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(463) HOYLE v. COMMISSIONER 469

it is authenticated pursuant to rule 901 of the Federal Rules

of Evidence. If documents from the administrative record on

remand are offered at trial for the additional purpose of

proving the truth of the matters asserted therein, 5 hearsay

and reliability objections can be addressed at that time.

Petitioner cites the American Bar Association (ABA) Model

Code of Judicial Conduct and the Tennessee Code of Judicial

Conduct, Tennessee Supreme Court rule 10, for the propo-

sition that communications between Ms. Nunnink and Ms.

Magee were impermissible. Petitioner’s reliance on the ABA

Model Code and the Tennessee code is misplaced. They do

not govern the matters before us and are not applicable to

the instant case.

The Internal Revenue Service Restructuring and Reform

Act of 1998 (RRA), Pub. L. 105–206, sec. 1001(a)(4), 112 Stat.

689, directed the Commissioner to develop a plan to prohibit

ex parte communications between Appeals Office employees

and other Internal Revenue Service (IRS) employees that

appear to compromise the independence of the Appeals offi-

cers:

The Commissioner of Internal Revenue shall develop and implement a

plan to reorganize the Internal Revenue Service. The plan shall—

* * * * * * *

(4) ensure an independent appeals function within the Internal Revenue

Service, including the prohibition in the plan of ex parte communications

between appeals officers and other Internal Revenue Service employees to

the extent that such communications appear to compromise the independ-

ence of the appeals officers.

To fulfill that congressional mandate to ensure an inde-

pendent Appeals Office, the Commissioner issued Rev. Proc.

2000–43, 2000–2 C.B. 404, which is effective for communica-

tions between employees of the Appeals Office and other IRS

employees taking place after October 23, 2000. See Drake v.

Commissioner, 125 T.C. 201, 208 (2005); Harrell v. Commis-

sioner, T.C. Memo. 2003–271. According to Rev. Proc. 2000–

43, supra, ex parte communications are communications that

take place between the Appeals Office and another IRS office

without the participation of the taxpayer or the taxpayer’s

5 See, e.g., Sego v. Commissioner, 114 T.C. 604, 610–611 (2000) (relying on a copy of the notice

and Postal Service Form 3877 to conclude, ‘‘[o]n the preponderance of the evidence, * * * that

the statutory notice of deficiency was sent’’).

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470 136 UNITED STATES TAX COURT REPORTS (463)

representative. Drake v. Commissioner, supra at 209. An

Appeals officer may not engage in ex parte discussions of the

strength and weakness of the issues of a case that would

appear to compromise the Appeals officer’s independence. Id.

The Appeals officer must give the taxpayer an opportunity to

participate in any discussions concerning matters that are

not ministerial, administrative, or procedural. Id.; Rev. Proc.

2000–43, sec. 3, Q&A–6, 2000–2 C.B. at 406. However, Rev.

Proc. 2000–43, supra, by its terms applies to communications

between an attorney in the Office of Chief Counsel and an

Appeals officer only in nondocketed cases; i.e., those cases

where the taxpayer has not yet filed a petition with the Tax

Court. Id. sec. 2, sec. 3, Q&A–11, 2000–2 C.B. at 404, 406–

407. As the instant case is a docketed case, Rev. Proc. 2000–

43, supra, does not apply directly to communications of Ms.

Nunnink with Ms. Magee.

During 2007 the IRS Office of Chief Counsel issued guide-

lines covering communications between IRS Chief Counsel

attorneys and Appeals officers when a case is remanded by

the Tax Court. Chief Counsel Notice CC–2007–006 (Feb. 23,

2007). That notice provided three guidelines to Chief Counsel

attorneys: (1) Chief Counsel attorneys are to prepare a writ-

ten memorandum explaining why the case was remanded

and noting any special instructions in the order of remand

and should provide a copy of the memorandum to the tax-

payer; the memorandum is not to discuss the credibility of

the taxpayer or the accuracy of the facts presented by the

taxpayer; (2) a Chief Counsel attorney may provide legal

advice to an Appeals officer as long as that attorney did not

give legal advice to an originating function (e.g., collection)

on the same issue in the same case; the legal advice should

not opine on the ultimate legal issues; and (3) the Chief

Counsel attorney who is handling the docketed case should

review the supplemental notice of determination to ensure

that it complies with the Tax Court’s order. Chief Counsel

Notice CC–2007–006 (Feb. 23, 2007) was superseded and

incorporated into Chief Counsel Notice CC–2009–010 (Feb.

13, 2009), which expired on May 15, 2009. However, the

procedural aspects of these Chief Counsel notices have been

incorporated into the Internal Revenue Manual (IRM) as of

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(463) HOYLE v. COMMISSIONER 471

March 11, 2009. 6 See IRM pt. 8.22.2.3 (Mar. 11, 2009). One

or more of these versions of the guidelines were in force

throughout the period during which Ms. Magee considered

petitioner’s case on remand.

We conclude that the conversations between Ms. Nunnink

and Ms. Magee were solely procedural, ministerial, or

administrative. Ms. Nunnink did not opine on the ultimate

issues or discuss petitioner’s credibility. Additionally, Ms.

Nunnink did not question petitioner’s motives, suggest terms

under which an offer-in-compromise would be accepted, or

recommend that respondent secure all of petitioner’s assets.

See Drake v. Commissioner, 125 T.C. at 209 (improper ex

parte communication where memorandum to Appeals officer

questioned motives of taxpayer’s counsel); Indus. Investors v.

Commissioner, T.C. Memo. 2007–93 (cover letter to Appeals

officer was improper ex parte communication because letter

told Appeals officer not to consider CDP hearing for pre-

viously filed lien, recommended that Government secure all

assets owned by taxpayer, and suggested terms under which

offer-in-compromise would be accepted). Rather, Ms.

Nunnink provided legal advice on specific issues, such as

6 In relevant part, Internal Revenue Manual pt. 8.22.2.3 (Mar. 11, 2009) states:

6. In Chief Counsel Notice (CC–2007–006), the IRS provided guidance on the application of the

ex parte rules to communications between Chief Counsel attorneys and the hearing office when

a CDP case is remanded by the Tax Court.

7. The following guidelines apply when a CDP case is remanded. The Counsel attorney working

the docketed case should prepare a written memorandum addressed to the Office of Appeals ex-

plaining:

A. the reasons why the court remanded the case to Appeals,

B. any special requirements in the order (e.g., whether and to what extent to hold a new con-

ference and whether the case must be reassigned to a new hearing officer),

C. what issues the court has ordered Appeals to address on remand.

Note:

The memorandum should not discuss the credibility of the taxpayer or the accuracy of the facts

presented by the taxpayer.

8. A request by a hearing officer for legal advice in connection with the remanded CDP case

may be handled by the Counsel attorney who is handling the docketed Tax Court case, so long

as that attorney did not give legal advice to an originating function (e.g., Collection) concerning

the same issue in the same case. If the Counsel attorney provided such advice, Counsel should

assign the request to another Counsel attorney who has not previously provided advice to a

Service office concerning the same issue in the same case. Counsel should carefully tailor any

legal advice to only answer the legal questions posed by Appeals, and the advice should not

opine on how you should ultimately decide the issues in the Supplemental NOD. Consistent

with Q&A11 of Rev. Proc. 2000–43, the advice does not have to be shared with the taxpayer

or his representative at the time it is rendered. Also, neither the taxpayer nor his representative

have a right to participate in any discussions between Appeals and Counsel with respect to the

advice.

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472 136 UNITED STATES TAX COURT REPORTS (463)

whether petitioner could challenge the underlying liability if

he had received a notice of deficiency. We do not believe that

such legal advice constitutes prohibited ex parte communica-

tions that should have been shared with petitioner.

Ms. Nunnink’s review of Ms. Magee’s draft supplemental

notice of determination was not an impermissible ex parte

communication. Ms. Nunnink’s comments were meant to

ensure that the supplemental notice of determination on

remand complied with our order of December 19, 2008. For

example, Ms. Nunnink asked Ms. Magee to clarify her posi-

tion in the supplemental notice of determination and asked

her to attach additional documents.

Additionally, Ms. Nunnink’s inclusion of the certified mail

list in the administrative record on remand was ministerial,

procedural, or administrative. See Rev. Proc. 2000–43, sec. 3,

Q&A–6. We remanded this case to the Appeals Office specifi-

cally for the purpose of having it ‘‘[clarify] the record

regarding the issue of what the Appeals officer relied upon

in determining that the notice of deficiency was properly sent

to petitioner.’’ Given our mandate on remand, Ms. Nunnink’s

actions were not prohibited ex parte communications. Evi-

dence of a certified mail list is precisely what the Court

sought by remand. Ms. Nunnink’s actions in finding the cer-

tified mail list and placing it in the administrative record on

remand do not ‘‘appear to compromise the independence of

the appeals [officer].’’ See RRA sec. 1001(a)(4). Moreover, peti-

tioner was sent a copy of the letter to Mr. Whitely, which

gave him notice of the addition of the certified mail list to the

administrative record on remand and allowed him to raise

that issue with Ms. Magee.

Accordingly, we conclude that Ms. Nunnink and Ms. Magee

did not engage in prohibited ex parte conduct or communica-

tions.

Respondent has provided notice to petitioner that he seeks

to introduce the administrative record on remand into evi-

dence. Petitioner objects to the admission into evidence of the

administrative record on remand on the basis that it is

inadmissible hearsay that lacks trustworthiness.

We need not rule on petitioner’s hearsay objection at this

time because the initial consideration by this Court of the

administrative record on remand will be for the limited pur-

pose, see Fed. R. Evid. 105, of establishing what information

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(463) HOYLE v. COMMISSIONER 473

was available to the Appeals Office when preparing the

supplemental notice of determination; and, for that purpose,

admission of the administrative record on remand for the

truth of the matters contained therein is not necessary. We

note that if respondent offers documents from that record at

trial for the truth of the matters contained therein, petitioner

may make any appropriate objections at that time. We also

note that, absent stipulation of the administrative record on

remand, respondent must authenticate it at trial.

Petitioner also contends that respondent may not refile the

NFTL. Respondent contends that he may refile the NFTL

pursuant to section 6325(f).

Pursuant to section 6321, if a person liable for a tax fails

to pay it after a demand for payment is made, a lien arises

in favor of the United States upon all property and rights to

property belonging to such person for the unpaid amount,

including interest. The lien arises when the tax is assessed

and continues until the underlying liability is satisfied or

becomes unenforceable by reason of lapse of time. Sec. 6322.

Section 6323 authorizes the Commissioner to file notice of

that lien; i.e., an NFTL. The NFTL establishes the lien’s pri-

ority over subsequent buyers of the property, holders of secu-

rity interests in the property, judgment-lien creditors, and

mechanic’s lienholders. See sec. 6323(a).

Generally, an NFTL must be refiled during the 1-year

period ending 10 years and 30 days after the date of assess-

ment (the refiling period). Sec. 6323(g). If the Commissioner

fails to refile the NFTL during the refiling period, the NFTL

generally is not effective after the expiration of that period

against any person with an interest in property subject to

the lien. Sec. 301.6323(g)–1(a)(3), Proced. & Admin. Regs.

However, section 301.6323(g)–1(a)(3)(i), Proced. & Admin.

Regs., provides an exception to this general rule: the failure

to refile the NFTL during the refiling period will not affect the

effectiveness of the NFTL with respect to property that is the

subject matter of a suit filed before the expiration of the re-

filing period to which the Government is a party. 7 Even if

7 On Apr. 4, 2011, the IRS released final regulations amending portions of sec. 301.6323(g)–

1(a), Proced. & Admin. Regs. T.D. 9520, 2011–18 I.R.B. 730. Those amendments apply to any

NFTL filed on or after Apr. 4, 2011. Under the amended regulations, the release of a Federal

tax lien on property that is the subject of litigation to which the Government is a party will

not affect the Government’s priority in such property as long as the suit was commenced before

Continued

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474 136 UNITED STATES TAX COURT REPORTS (463)

the NFTL is not refiled during the refiling period, provided

the lien remains in existence the Commissioner may still file

a new NFTL, which will be effective from the date it is filed.

Sec. 301.6323(g)–1(a)(4), Proced. & Admin. Regs.

The Commissioner may withdraw an NFTL before the

underlying tax is paid if it is determined that: (1) The NFTL

was prematurely filed or otherwise not in accordance with

IRS procedures; (2) the taxpayer has agreed to an installment

agreement; (3) withdrawal of the NFTL will facilitate collec-

tion; or (4) withdrawal of the NFTL is in the best interests of

the taxpayer and the United States. Sec. 6323(j)(1). With-

drawal does not affect the underlying lien. Sec. 301.6323(j)–

1(a), Proced. & Admin. Regs.

The Commissioner must issue a certificate releasing a lien

within 30 days after he determines that the entire tax

liability (including interest) has been paid or becomes legally

unenforceable, or if the taxpayer posts an acceptable bond.

Sec. 6325(a). If the Commissioner determines that a certifi-

cate of release was issued improvidently or erroneously and

if the period of limitations for collecting the underlying

liability has not expired, the Commissioner may revoke the

certificate of release and reinstate the lien. Sec. 6325(f)(2). A

certificate of release is not conclusive proof that the liability

is extinguished. See Boyer v. Commissioner, T.C. Memo.

2003–322. The underlying tax liability that is the subject of

the NFTL remains until the tax is paid in full or the period

of limitations on collection expires. See id.; sec. 301.6325–

1(a)(1), Proced. & Admin. Regs.

Generally, the Commissioner has 10 years from the date of

assessment to collect the tax due. Sec. 6502(a). However, if

the taxpayer requests an administrative review of an NFTL,

the period of limitations is suspended during the period of

that hearing, and appeals therein. Secs. 6320(c), 6330(e).

On August 26, 1996, respondent assessed the tax in issue.

Petitioner timely requested an administrative review of the

original NFTL, and subsequently, in the instant case,

requested judicial review of that proceeding. As a decision in

the instant case has not yet become final, the period of

limitations on collection remains suspended. See secs.

6320(c), 6330(e). The original NFTL indicated that unless

the date the lien was released. Sec. 301.6323(g)–1(a)(3)(i), Proced. & Admin. Regs.

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(463) HOYLE v. COMMISSIONER 475

refiled by September 25, 2006, it would constitute a certifi-

cate of release of lien. The NFTL was not refiled by that date.

On March 3, 2009, respondent filed a revocation of certificate

of release of Federal tax lien and immediately thereafter

refiled the NFTL. Consequently, respondent refiled the NFTL

within the limitations period for collection.

Respondent’s lien for the underlying tax reflected in the

NFTL remains in existence because the period of limitations

on collections has been suspended by the instant proceedings.

See secs. 6322, 6330(e). The NFTL was refiled with the Clerk

of Court of Jefferson Parish, Louisiana, in accordance with

section 6323(f). 8 See La. Rev. Stat. Ann. sec. 52:52 (2004).

Consequently, we conclude that respondent’s refiling of the

NFTL is not grounds for dismissal of the instant case in peti-

tioner’s favor. Accordingly, we will deny petitioner’s motion

to dismiss respondent’s lien.

To reflect the foregoing,

An appropriate order will be issued.

f

8 Petitioner does not contend that respondent failed to follow proper procedures in refiling the

NFTL.

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