UNITED STATES TAX COURT

136 T.C. No.

22

UNITED STATES TAX COURT

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.

*This Opinion supplements Hoyle v. Commissioner, 131 T.C.

197

(2008) .

SERVED MAY 2 3 2011

- 2 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 dismiss

respondent's lien.1

We must decide:

(1) Whether the proposed

Supplemental Stipulation of Facts and exhibits should be

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 dismiss and to bar evidence

filed on Oct. 5, 2009. These motions contain many of the same

arguments 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.

- 3 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

Louisiana.

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

deficiency.

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

- 4 -

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 what the

Appeals officer relied upon in determining that the notice

of deficiency was properly sent to petitioner.

[Fn. ref.

omitted.]

Hoyle v. Commissioner, supra at 205.

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 determination that the notice of

deficiency was 'properly sent'."

Notice CC-2006-19

(Aug.

18,

Id. n.7 (quoting Chief Counsel

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

2Unless 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.

- 5 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).

letter.

Petitioner was sent a copy of the December 22, 2008,

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 communications

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;

whether the assessment was valid;

(2)

(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.

- 6 -

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 reviewed Ms. Magee's

draft supplemental notice of determination to ascertain whether

all issues the Court had required to be addressed were included

in Ms. Magee's determination 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 refiling

date stated on the original NFTL had passed.

Throughout 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

- 7 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

supplemental 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

stipulation, 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 evidence at

trial, before the issuance of our prior opinion remanding the

case to respondent's Appeals Office;

(2) several previous filings

made with the-Court;3 and (3) sever'al documents that Ms. Magee

created or considered on remand (administrative record on

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

the answer filed on June 29, 2Ò04, respondent's motion for

summary judgment filed on Sept. 26, 2006, petitioner's response

to respondent's motion for summary judgment filed on Oct. 25,

2006, petitioner's pretrial memorandum filed on May 21, 2007,

respondent's opening brief filed on Aug. 6, 2007, petitioner's

answering brief filed on Sept. 20, 2007, respondent's reply brief

filed on Nov. 14, 2007, and our prior Opinion in the instant

case, Hovle v. Commissioner, 131 T.C. 197

(2008).

- 8 remand).

Evidence previously admitted at trial, like the trial

transcript itself, is already in the record, and we therefore

need not address its admissibility.

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 particular 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); Freiie v. Commissioner, 131 T.C. 1, 5

4Proceedings in the Tax Court are generally governed by the

Federal Rules of Evidence. Rule.143(a).

- 9 (2008),

affd.

325 Fed. Appx. 448

(7th Cir.

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

section 6330 cases).

2009); see also Kelby

(similar holding for

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,

(1st Cir. 2005)

414 F.3d 144,

155

("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'."

v. Lorion,

470 U.S.

729,

744

(quoting Fla. Power & Light Co.

(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 review of the ultimate administrative

determination.

Kelby v. Commissioner, supra at 86; see also

Wadleigh v. Commissioner, 134 T.C. 280, 299 (2010)

result in a section 6330 case).

(similar

A corollary to the fact that the

taxpayer may receive only one hearing is that the Commissioner's

Appeals Office makes a single determination.

Commissioner, supra at 86.

Kelby v.

When this Court remands a case to the

Appeals Office and it comes back to us after a supplemental

determination is issued, we review the supplemental

determination.

Id.

il

- 10 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 petitioner.

If the notice of deficiency was not properly mailed, the

assessment of tax would be invalid.

Commissioner, 131 T.C. at 205..

The act of mailing may be proven

by documentary evidence of mailing.

T.C.

82,

91

(1990).

See sec. 6213(a); Hoyle v.

Coleman v. Commissioner, 94

We have held that exact compliance with

Postal Service Form 3877 mailing procedures raises a presumption

I

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.

States v.

Zolla,

724 F.2d 808,

810

Id.; see also United

(9th Cir.

1984).

Ms. Magee

was not limited to what the original Appeals officer considered.

She was required to consider, 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 mai-1 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

- 11 -

by respondent's Appeals Office on remand and will at least be

admitted into evidence for the limited purpose (as allowed by

rule 105 of the Federal Rules of Evidence) 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 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," 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 proposition

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

(RIUK),

Pub. L.

sSee, e.g.,

105-206,

Sego v.

sec.

1001(a) (4),

Commissioner,

114 T.C.

112 Stat.

604,

689,

610-611

(2000) (relying on a copy of the notice and postal Form 3877 to

conclude, "[o]n the preponderance of the evidence, * * * that the

statutory notice of deficiency was sent").

I

- 12 -

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 officers:

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 independence of

the appeals officers.

To fulfill that congressional mandate to ensure an

independent Appeals Office, the Commissioner issued Rev. Proc.

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

between employees of the Appeals Office and other IRS employees

taking place after October 23, 2000.

125 T.C.

2003-271.

201,

208

See Drake v. Commissioner,

(2005); Harrell v. Commissioner, T.C. Memo.

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 representative.

Commissioner, supra at 209.

Drake v.

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

- 13 -

opportunity to participate in any discussions concerning matters

that are not ministerial, administrative, or procedural.

Rev. Proc.

2000-43,

sec. 3, Q&A-6,

2000-2 C.B. at 406.

Id.;

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.

sec. 2,

sec.

3,

Q&A-11,

2000-2 C.B. at 404,

406-407.

Id.

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

guidelines 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

notice provided three guidelines to

(Feb.

23,

2007).

That

Chief Counsel attorneys:

(1) Chief Counsel attorneys are to prepare a written 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 taxpayer; 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

l

- 14 -

(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

on May 15, 2009.

(Feb.

13,

2009), which expired

However, the procedural aspects of these Chief

Counsel notices have been incorporated into the Internal Revenue

Manual

(IRM)

as of March 11,

2009-6

See IRM pt.

8.22.2.3

(Mar.

'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 explaining:

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 conference and

whether the case must be reassigned to a new hearing

officer),

C.

what issues the court has ordered Appeals to

address on remand.

(continued...)

- 15 -

11, 2009).

One or more of these versions' of the guidelines were

in force throughout the period during which Ms. Mageetconsidered

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.

'(...continued)

See Drake v.

·.

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.

- 16 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 previously 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 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

communications 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

thè suþplemental notice of determination on remand complied with

our order of December 19, 2008.

For example, Ms. Nunnink asked

Ms. Magee to clarify her position 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.

Q&A-6.

See Rev. Proc. 2000-43, sec. 3,

We remanded this case to the Appeals Office specifically

- 17 -

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.

Evidence of a certified mail list is

precisely,what the Court sought by remand.

Ms. Nunnink's actions

in finding the certified 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, petitioner 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 communications.

Respondent has provided notice to -petitioner that he seeks

to introduce the administrative record on remand into evidence.

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 purpose,

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

- 18 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 priority over

subsequent buyers of the property, holders of security interests

in the property, judgment-lien creditors, and mechanic's

lienholders.

See sec. 6323(a).

|

- 19 -

Generallys an NFTL- must be refiled during the 1-year period

ending 10 years and 30 days after the date of assessment (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.

301.6323(g)-1(a) (3),

Proced.

301.6323(g)-1(a) (3)-(i),

& Admin. Regs.

Proced.

exception to this general rule:

Sec.

However, section

& Admin. Regs., provides an

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 refiling period to which

the Government is a party.?

Even if 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.

1(a) (4),

Proced.

Sec. 301.6323(g)-

& Admin. Regs.

The Commissioner may- withdraw an NFTL before the underlying

tax is paid if it is determined that':

(1) The NFTL was

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 the date the lien was

released. Sec. 301.6323(g)-1(a) (3) (i), Proced. & Admin. Regs.

- 20 -

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 collection;

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

taxpayer and the United States.

Sec. 6323(j) (1).

does not affect the.underlying lien.

Withdrawal

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

1

(including interest) has been paid or becomes legally

unenforceable, or if the taxpayer posts an acceptable bond.

6325(a).

Sec.

If the Commissioner determines that a certificate of

release was issued improvidently or erroneously and if the period

of limitations for collecting the underlying liability has not

3 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

- 21 -

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 refiled by September 25,

2006, it would constitute a certificate of release of lien.

NFTL was not refiled by that date.

The

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.

secs.

6322,

6330(e).

See

The NFTL was refiled with the Clerk of

Court of Jefferson Parish, Louisiana, in accordance with section

6323(f).*

See La. Rev.

Stat. Ann.

sec.

52:52

(2004).

"Petitioner does not contend that respondent failed to

follow proper procedures in refiling the NFTL.

- 22 Consequently, we conclude that respondent's refiling of the NFTL

is not grounds for dismissal of the instant case in petitioner's

favor.

Accordingly, we will deny petitioner's motion to dismiss

respondent's lien.

To reflect the foregoing,

An appropriate order will

be issued.