concluding that the review of a CDP decision rendered by an Appeals officer under section 6330 is limited to the administrative record before the Appeals officer
How later courts described this case
- concluding that the review of a CDP decision rendered by an Appeals officer under section 6330 is limited to the administrative record before the Appeals officer
- suggesting it might be appropriate not to admit testimony or other evidence when the taxpayer has failed to cooperate in presenting relevant evidence at the section 6330 hearing
- distinguishing situation where taxpayer refuses to furnish relevant evidence requested at section 6330 hearing
- “[W]hen reviewing for abuse of discretion under section 6330(d), . . . our review is not limited to the administrative record.”
Written by the judges who cited it.
The opinion
Marvel, J., concurring: I agree that the Administrative Procedure Act does not apply and we are not limited to the administrative record, and with the majority’s conclusion that the Appeals officer abused his discretion in this case, but I question the majority’s reliance on principles of contract law to reach its conclusion. The Appeals officer’s failure to refer the case to the National Office for guidance regarding the reinstatement of petitioner’s offer-in-compromise before making his determination in this case is more than sufficient to support the conclusion that the Appeals officer abused his discretion in upholding the proposed collection action.
In his brief, petitioner asserted several errors that he contended established an abuse of discretion. One of those errors was that the Appeals officer “did not fully investigate the method of reinstating a revoked Offer in Compromise.” The Appeals officer testified at trial that he did not believe that he had the authority to reinstate the offer-in-compromise. He also testified, however, that he could have referred the case to the National Office for guidance concerning the reinstatement of an offer-in-compromise. 1 Given the importance of the reinstatement issue in determining whether the collection action could proceed, the Appeals officer should have obtained the guidance he needed from the National Office before he made his determination in this case.
An Appeals officer is required by section 6330(c)(3) to consider “whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary.” Until the Appeals officer had fully explored whether and under what circumstances he had authority to reinstate petitioner’s offer-in-compromise, it was impossible for the Appeals officer to conduct the balancing analysis that section 6330(c)(3) requires. Coupled with the Appeals officer’s reluctance to fully explore the facts regarding petitioner’s compliance with the terms and conditions of the offer-in-compromise, which the majority discusses at length, the failure to obtain the necessary guidance from the National Office supports a conclusion that the balancing required by section 6330(c)(3) did not occur and that the Appeals officer abused his discretion in upholding the proposed collection action.
Laro and Wherry, JJ., agree with this concurring opinion. Although the Appeals officer’s case activity records indicate that he telephoned a person in the National Office on at least two occasions regarding whether a defaulted offer-in-compromise could be reinstated, it does not appear from the records that formal guidance from the National Office was ever obtained.