# Giamelli v. Comm'r

> United States Tax Court · October 30, 2007 · 129 T.C. 107

URL: https://www.frixlaw.com/law-library/cases/4474692

## Case

- **Full name:** JOSEPH GIAMELLI v. COMMISSIONER OF INTERNAL REVENUE
- **Court:** United States Tax Court
- **Decided:** October 30, 2007
- **Citations:** 129 T.C. 107; 129 T.C. No. 14; 2007 U.S. Tax Ct. LEXIS 33
- **Precedential status:** Published
- **Opinion:** Concurrence by Wherry
- **Judges:** "Goeke, Joseph Robert"
- **Cited by:** 502 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4474692

## How later opinions describe it (automated extraction)

- holding that collection proceedings reviewed under an abuse of discretion standard must be limited to the issues raised before Appeals
- stating that Appeals officer did not abuse her discretion in rejecting proposed installment agreement (a collection alternative) and sustaining proposed collection action because taxpayer was not in compliance with his current tax obligations
- holding that review of collection determinations for abuse of discretion must be limited to issues raised before Appeals
- stating that it is up to the Court to determine the accuracy and completeness of the administrative record, which may require an evidentiary hearing
- holding “that [the Tax Court] do[es] not have authority to consider section 6630(c)(2) issues that were not raised before the Appeals Office”

## Opinion text

WHERRY, J., concurring: The majority opinion does not expressly overrule Magana v. Commission, 118 T.C. 488 (2002), a choice of action with which I agree. The instant case and Magana raise different issues. This case is a question of jurisdiction to consider a new issue (underlying tax liability, which was not raised at the Appeals Office level) under section 6330(c)(2)(B). Magana was a question of whether to consider a new matter (hardship, which was not raised at the Appeals Office level) in an abuse of discretion case under section 6330(d)(1). There is no discretion, much less an abuse of discretion, in deciding whether we have jurisdiction over a section 6330(c)(2)(B) matter. Either we have jurisdiction to consider the issue, or we do not. Given this difference, and the potential issue of an Appeals Office hearing record’s accuracy, I believe there are at least two circumstances where the rule in Magana (potentially permitting the consideration of arguments, issues, or other matters, which the record indicates were not brought to the Appeals Office’s attention before the determination letter was sent) may continue to apply.
First, in my view, the “record” in a section 6320 and/or section 6330 case is not sacrosanct. Initially, it is prepared by the Commissioner as a part of the stipulation of facts, or on occasion as an exhibit to the answer, or a motion for summary judgment, which document is then filed with the Court and then incorporated by the Clerk’s Office in the Court’s case record. The Commissioner now prepares the record presumably in accordance with section 301.6330-l(f), Q&A-F4, Proced. & Admin. Regs., which clarified Office of Chief Counsel Notice CC-2006-019 (Aug. 18, 2006). That Office of Chief Counsel Notice had incorporated and superseded Office of Chief Counsel Notice CC-2006-008 (Dec. 27, 2005), and updated and replaced Office of Chief Counsel Notice CC-2003-016 (May 29, 2003). Errors in the record will inevitably occur from time to time, given the large number of records, their complexity, and the number of people participating in the various stages of the collection due process (cdp) procedures.
Where the accuracy of the administrative record is challenged by a party, it is ultimately up to the Court to determine the accuracy and completeness of the administrative record. 1 To make this determination the Court may hold an evidentiary hearing to explore and document whether relevant material below was excluded from the record and/or the record was inappropriately augmented after the Appeals Office hearing and the issuance of the determination letter. The majority opinion does not disagree with this conclusion. See majority op. n.7.
Second, Appeals Office hearings are informal. See Katz v. Commissioner, 115 T.C. 329, 337 (2000); Davis v. Commissioner, 115 T.C. 35, 41 (2000); sec. 301.6330-1(d)(2), Q&A-D6, Proced. & Admin. Regs. There exists no right to subpoena witnesses or documents in connection with a section 6330 Appeals Office hearing. See Roberts v. Commissioner, 118 T.C. 365, 372 (2002) affd. 329 F.3d 1224 (11th Cir. 2003); Nestor v. Commissioner, 118 T.C. 162, 166-167 (2002); Davis v. Commissioner, supra at 41-42; sec. 301.6330-1(d)(2), Q&A-D6, Proced. & Admin. Regs.
While taxpayers must raise all pertinent issues at the Appeals Office hearing and make a timely good faith effort to produce evidence in support of those issues, they may be unable to provide sufficient evidence to convince a skeptical Appeals Office employee. This is particularly true where the supporting evidence includes the testimony or documents of uncooperative third parties. In such circumstances the taxpayer may seek to provide additional evidence at the section 6330(d)(1) trial utilizing the Tax Court’s Rule 147 subpoena power or the threat thereof. In such cases, in determining whether the Appeals Office abused its discretion, the taking of additional evidence at trial with respect to a previously raised issue may be appropriate. Robinette v. Commissioner, 123 T.C. 85, 95 (2004), revd. 439 F.3d 455 (8th Cir. 2006).
Congress enacted section 6330 as a part of remedial legislation, the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat. 685, to ensure taxpayer rights against alleged Internal Revenue Service mistreatment by affording taxpayers “formal procedures designed to ensure due process where the IRS seeks to collect taxes by levy (including by seizure).” S. Rept. 105-174, at 67 (1998), 1998- 3 C.B. 537 , 603. Because I believe that due process in formal judicial actions may need to include the right to call witnesses where that right was not previously afforded and facts are in dispute, I continue to believe that Robinette was correctly decided.
Haines, J., agrees with this concurring opinion. Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985); Franklin Sav. Association v. Dir., Office of Thrift Supervision, 934 F.2d 1127, 1137 (10th Cir. 1991); Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 555-556 (9th Cir. 1989); Murphy v. Commissioner, 125 T.C. 301, 311 (2005), affd. 469 F.3d 27 (1st Cir. 2006); ITT Fed. Servs. Corp. v. United States, 45 Fed. Cl. 174, 185 (1999); O'Toole v. U.S. Secy. of Agric.; 471 F. Supp. 2d 1323, 1328-1329 (Ct. Intl. Trade 2007).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4474692. Public record. Not legal advice.