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United States Tax Court

T.C. Memo. 2022-4

ESTATE OF ANTHONY K. WASHINGTON, DECEASED,

LENDA WASHINGTON, PERSONAL REPRESENTATIVE,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

—————

Docket No. 20410-19L.

Filed February 2, 2022.

—————

Charles A. Ray, Jr., for petitioner.

Jacob Russin and Jeffrey E. Gold, for respondent.

MEMORANDUM OPINION

TORO, Judge: This is a collection due process (CDP) case. The

estate of Anthony K. Washington, deceased, Lenda Washington,

personal representative (Estate), seeks review pursuant to

section 6330(d)(1) 1 of a determination by the Internal Revenue Service

(IRS) Independent Office of Appeals (IRS Appeals), dated October 18,

2019, as supplemented on June 17, 2021. That determination, as

supplemented, sustained a notice of intent to levy to collect

Mr. Washington’s unpaid income tax liabilities for the taxable years

2008 to 2010, 2014, and 2015 (Relevant Tax Years) and rejected the

Estate’s offers-in-compromise. The Commissioner of Internal Revenue

has moved for summary judgment under Rule 121, contending that no

1 Unless otherwise indicated, all statutory references are to the Internal

Revenue Code (I.R.C. or Code), Title 26 U.S.C., in effect at all relevant times, all

regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in

effect at all relevant times, and all Rule references are to the Tax Court Rules of

Practice and Procedure. We round all monetary amounts to the nearest dollar.

Served 02/02/22

2

[*2] material facts remain in dispute and that IRS Appeals’

determination was proper as a matter of law. We agree and will

therefore grant the Commissioner’s motion.

Background

The following facts are based on the parties’ pleadings and motion

papers, including the declarations and exhibits attached thereto.

See Rule 121(b). The facts are stated solely for the purpose of ruling on

the Commissioner’s motion and not as findings of fact in this case.

See Whistleblower 769-16W v. Commissioner, 152 T.C. 172, 173 (2019).

Ms. Washington resided in Washington, D.C., when the petition in this

case was filed. 2

I.

Mr. and Ms. Washington’s Marriage and Divorce

The decedent, Mr. Washington, whose income tax liabilities for

the Relevant Tax Years are the subject of this case, married

Ms. Washington in 1981. The couple had one son. In 2006, Mr. and

Ms. Washington were divorced.

A.

The Divorce Decree

The divorce was finalized by the Superior Court of the District of

Columbia, which issued its Findings of Fact, Conclusions of Law and

Judgment of Absolute Divorce (Divorce Decree) on June 6, 2006.

2 Our Court has yet to rule on whether the residence of an estate’s executor (or

personal representative) determines appellate venue under section 7482(b)(1).

See Estate of Clack v. Commissioner, 106 T.C. 131, 140–41 (1996) (concluding it was

unnecessary to decide the question of proper appellate venue for a federal estate tax

case); id. at 145–49 (Gerber, J., concurring) (concluding that appellate venue depends

on domicile of decedent); id. at 142 (Chabot, J., concurring in result) (agreeing with

Judge Gerber on appellate venue); id. at 152, 159–67 (Parker, J., dissenting)

(concluding that appellate venue depends on residence of executor of estate). But see

Estate of Thompson v. Commissioner, 382 F.3d 367, 374 n.12 (3d Cir. 2004) (concluding

without significant discussion that residence of executor controls in federal estate tax

case), aff’g T.C. Memo. 2002-246; Estate of Israel v. Commissioner, 159 F.3d 593, 595

(D.C. Cir. 1998) (reaching the same conclusion in federal income tax case), rev’g and

remanding 108 T.C. 208 (1997). But we need not decide the issue here because we

discern no differences that would affect the outcome of this case in the precedent of the

U.S. Court of Appeals for the District of Columbia Circuit, where Ms. Washington

resided, and that of the U.S. Court of Appeals for the Fourth Circuit, where

Mr. Washington apparently was domiciled when he died and where the Estate is being

administered. See Golsen v. Commissioner, 54 T.C. 742 (1970), aff’d, 445 F.2d 985

(10th Cir. 1971).

3

[*3] Two provisions of the Divorce Decree are relevant to this case.

The first is the Judgment entered by the court, and the second is a

Finding of Fact with respect to a Marital Settlement Agreement (MSA)

entered into by the parties as of June 2, 2006.

The Judgment section of the Divorce Decree provided as follows:

JUDGMENT

WHEREFORE, it is by the Court, this 6th day of June,

2006,

ORDERED, ADJUDGED AND DECREED, that the

Plaintiff, Lenda P. Washington, be and hereby is, awarded

an absolute divorce from the Defendant, Anthony

Washington, on the ground that the parties have lived

separate and apart, without cohabitation and without

interruption, for at least one year next preceding the filing

of the Complaint for Absolute Divorce.

PROVIDED, HOWEVER, that pursuant to D.C. Code

Section 16-920 (Suppl., 2004) this Judgment shall become

effective to dissolve the bonds of matrimony thirty (30)

days after the docketing of this Judgment unless either

party applies for a Stay with the Superior Court or the

Court of Appeals of the District of Columbia, and

FURTHER PROVIDED, that the Court reserves

jurisdiction for the entry of the appropriate retirement

order.[3]

Paragraph 7 of the Findings of Fact of the Divorce Decree

explained:

The parties entered into a comprehensive Marital

Settlement Agreement dated June 2, 2006 . . . , which

resolved all issues between the parties. There are no issues

remaining to be resolved by the Court, other than the

granting of the divorce and entry of the Order with respect

to Defendant’s retirement plan.

3 At a remote hearing on November 16, 2021, the Estate represented that, to

its knowledge, the superior court did not enter such an order.

4

[*4]

B.

The MSA

The MSA, in turn, stated that the parties had separated and lived

apart since on or about January 12, 2002, and,

In view of the separation, the parties . . . [were] desirous of

settling and determining their obligations to each other

and all of their property rights; the custody and support of

their son, the maintenance and support of each of the

parties by the other; as well as all other rights, claims,

relationships or obligations between them arising out of

[Mr. and Ms. Washington’s] marriage or otherwise.

Three provisions of the MSA are particularly relevant to this case.

They relate to (1) Mr. and Ms. Washington’s retirement plans, (2) a life

insurance policy provided to Mr. Washington through his employer, and

(3) Mr. and Ms. Washington’s intentions concerning the interaction of

the MSA and the Divorce Decree.

1.

Provision Regarding Retirement Plans

With respect to the retirement plans, section 4.6(c) of the MSA

provided:

Waiver of Pension and Retirement Rights. Except as

otherwise set forth herein, each party hereby expressly

waives any legal right he or she may have under any

federal or state law as a spouse or former spouse, or person

with an insurable interest, or otherwise, to participate as a

“spouse” or “former spouse” or payee or alternate payee or

beneficiary or otherwise under the other party’s pension,

profit sharing, retirement, . . . 401(k), . . . or other similar

plans, programs or accounts, including, but not limited to,

the right to receive any benefit whether in the form of a

lump sum distribution or a lump sum death benefit, or a

single and/or joint and/or joint and survivor annuity, or a

pre-retirement survivor annuity, or a survivor annuity, or

otherwise. . . . Each party agrees to execute all documents

necessary to implement the provisions of this paragraph.

In an effort to comply with the intent of this article; (i) if a

party is unable for any reason to change the beneficiary or

the death benefits of his or her pension, profit sharing, or

other form of retirement or deferred income plan, or any

5

[*5] other plan referred to in the paragraph above, or (ii) if a

party files an election subsequent to the date of execution

of this Agreement but such election is for any reason

ineffective and the benefits are, in fact, paid to the

surviving party contrary to the intention of this paragraph,

or, (iii) if a party fails to designate a beneficiary and the

plan provides for payment to the “spouse” or “former

spouse,” then in any of such events the surviving party

shall, and except as otherwise provided in this Agreement,

at the direction of and at the sole discretion of the

decedent’s personal representative, either: (A) disclaim

any entitlement to any benefits received or receivable; or

(B) assign all rights to receive such benefits to the estate of

the deceased party or the person designated by the

decedent or the decedent’s personal representative to

receive such benefits; or (C) pay the . . . [net] after-tax

benefits over to the estate of the deceased party or to the

person designated by the decedent or by the decedent’s

personal representative.

2.

Provision Regarding Life Insurance

With respect to the life insurance policy, section 5.0 and 5.1 of the

MSA provided:

LIFE INSURANCE

The parties’ son is currently named as the beneficiary of

the Husband’s life insurance through his employment with

a face amount of $100,000.[4] The Husband agrees to

irrevocably elect the Wife as the beneficiary of this

coverage on his life for so long as he is employed, and

further agrees not to borrow against or otherwise

encumber such life insurance proceeds. The Husband

agrees that his notarized signature on page 12[5] of this

Agreement constitutes his irrevocable designation of the

Wife as such beneficiary, and directs Radio One, upon

receipt of a copy of this paragraph and the signature page,

4 At the November 16, 2021, remote hearing, the Estate did not dispute that

the life insurance proceeds were in fact paid to Mr. and Ms. Washington’s son upon

Mr. Washington’s death.

5 The signatures appear on page 13 (not page 12) of the MSA.

6

[*6]

. . . to effectuate the intent of this paragraph by so listing

the Wife as the irrevocable beneficiary.

3.

Provision Regarding Interaction with Divorce Decree

Finally, with respect to the interaction of the MSA and the

Divorce Decree, section 11.0 and 11.1 of the MSA provided:

MERGER OF

DIVORCE

AGREEMENT

IN

DECREE

OF

The parties shall be bound by all the terms of this

Agreement in resolving the pending divorce case . . .

between them in the District of Columbia. The parties

further agree that this Agreement shall be independent of

and shall not be merged in or otherwise affected thereby.

II.

The Estate’s Tax Liabilities and IRS Collection Efforts

A.

Federal Income Tax Returns for 2008, 2009, and 2010 and

Mr. Washington’s Death

Mr. Washington had substantial earnings in 2008, 2009, and

2010, but did not file timely federal income tax returns for those years.

The IRS inquired about Mr. Washington’s failure to file timely returns

and eventually received his late-filed returns in 2014. Although the

returns showed that income tax was due for each year, Mr. Washington

did not pay the outstanding balances shown on the returns. The IRS

assessed the tax shown on the returns together with certain additions

to tax and penalties. The IRS also entered into an installment

agreement with Mr. Washington permitting him to pay the outstanding

balances for these years over time.

Unfortunately, on November 10, 2015, about a year after entering

into the installment agreement, Mr. Washington died intestate,

terminating the installment agreement, and leaving a significant

portion of his federal tax liabilities for 2008, 2009, and 2010 unpaid.

Just over two years later, on December 22, 2017, the IRS recorded

a lien with respect to the outstanding liabilities for these years. The IRS

timely notified the Estate of the lien filing and of the right to a CDP

hearing, but the Estate did not seek a hearing.

7

[*7]

B.

Federal Income Tax Returns for 2014 and 2015

Mr. Washington also had substantial earnings in 2014 and 2015.

He failed to file a timely return for 2014, and the Estate failed to file a

timely return for 2015.

In 2017, Ms. Washington, as personal

representative of the Estate, caused the Estate to file Mr. Washington’s

income tax returns for 2014 and 2015, but it did not pay the outstanding

balances shown on those returns. As with the prior years, the IRS

assessed the tax shown on the returns for 2014 and 2015, together with

certain additions to tax and penalties.

C.

Additional IRS Collection Efforts

In an effort to collect Mr. Washington’s unpaid tax, on March 30,

2018, the IRS mailed to the Estate a Notice LT11, Notice of Intent to

Levy and Notice of Your Right to a Hearing. The notice advised that the

IRS intended to seize the Estate’s property or rights to property to collect

the outstanding balance for the Relevant Tax Years and informed the

Estate of the right to request a CDP hearing. The notice showed an

overall balance due of $189,593 before certain penalties and interest.

On April 9, 2018, the IRS timely received from the Estate a

Form 12153, Request for a Collection Due Process or Equivalent

Hearing. The request listed the Relevant Tax Years as the periods at

issue and checked the appropriate box to request a hearing regarding a

“Proposed Levy or Actual Levy.” The request was referred to IRS

Appeals.

III.

CDP Proceedings and the Estate’s Initial Offer-in-Compromise

The Estate’s CDP case was assigned to Settlement Officer

Darlene J. Macaulay. The Estate submitted a Form 656, Offer In

Compromise, accompanied by a Form 433-A (OIC), Collection

Information Statement for Wage Earners and Self-Employed

Individuals. The Form 433-A (OIC) and bank statements attached to it

indicated that the Estate owned a Bank of America account with a value

of $34,570. The Estate offered $10,000 to settle the tax liability for the

Relevant Tax Years. The Estate stated that the basis for its offer was

“Doubt as to Collectibility—I do not have enough assets and income to

pay the full amount.” The “Explanation of Circumstances” section of the

Form 656 was left blank.

After some initial communications with the Estate, Settlement

Officer Macaulay referred the case to the IRS Centralized Offer in

8

[*8] Compromise (COIC) unit. Following communications from the

COIC unit, the Estate provided additional documentation to assist in

the evaluation of its offer-in-compromise. Ultimately, the COIC unit

notified the Estate that it had reached a preliminary decision to reject

the Estate’s $10,000 offer because it calculated the Estate’s reasonable

collection potential as far exceeding its offer. The determination was

largely based on the balance of Mr. Washington’s section 401(k) account

at the time of his death (approximately $148,000) and the fact that the

allowable expenses determined by the COIC unit (that is, the expenses

with priority over the federal tax liability) did not reduce the reasonable

collection potential to the amount the Estate offered. The case was

returned to Settlement Officer Macauley.

After further communication between the Estate’s counsel and

Settlement Officer Macaulay, the Estate’s CDP case was transferred

from Settlement Officer Macaulay to Settlement Officer Steven A.

Lerner. On October 2, 2019, Settlement Officer Lerner held the Estate’s

CDP hearing. The Estate offered arguments in support of its position

but declined to increase its offer.

Shortly thereafter, Settlement Officer Lerner issued a notice of

determination sustaining the notice of intent to levy and the rejection of

the Estate’s offer. Settlement Officer Lerner noted that the Estate had

not challenged either the amount or the existence of the underlying tax

liability, and that the Estate’s counsel had proposed no collection

alternatives except for the $10,000 offer. Like the COIC unit,

Settlement Officer Lerner relied on the large balance of the section

401(k) account at the time of Mr. Washington’s death and the expenses

he thought allowable, and found the Estate’s offer inadequate.

IV.

Tax Court Proceedings and Remand to IRS Appeals

On November 15, 2019, the Estate timely petitioned our Court for

review of IRS Appeals’ determination. In its petition, the Estate alleged

that the $10,000 offer was erroneously rejected because, in its view, the

disbursements that IRS Appeals considered nonpriority expenses in fact

had priority over the Estate’s unpaid federal tax liability. The Estate

also cited “other reasons” that were not specified.

A.

The Commissioner’s First Motion for Summary Judgment

and the Estate’s Revised Offer-in-Compromise

On November 19, 2020, the Commissioner moved for summary

judgment. The Estate opposed the motion. In its opposition the Estate

9

[*9] argued, among other things, that IRS Appeals had overstated the

Estate’s reasonable collection potential by double-counting the balance

of the section 401(k) account. Discussions between the parties ensued.

On February 25, 2021, the Estate sent a letter to the

Commissioner’s counsel referencing a conference call in which the

parties had discussed remanding the case to IRS Appeals for further

consideration if the Estate would provide additional information

regarding its offer. Attached to that letter was, as the Estate put it, a

“resubmi[ssion]” of the Estate’s offer, including revised Forms 433-A

(OIC) and 656 and certain additional documentation.

The Estate’s revised Form 433-A (OIC) indicated that the Estate’s

assets consisted of a Bank of America account with a value of $24,990.

The Estate increased its offer-in-compromise amount from $10,000 to

$23,990, reflecting the value of the bank account less $1,000. As in the

initial Form 656, the Estate indicated the reason for the offer was

“Doubt as to Collectibility—I do not have enough assets and income to

pay the full amount.” But, unlike the initial form, the revised form also

stated in the “Explanation of Circumstances” section: “Doubt as to

Collectibility with Special Circumstances / Statement of Special

Circumstances with Exhibits Follows This Page.”

Attached to the Estate’s Form 656 was a “Supplemental

Statement of Special Circumstances” that purported to show why the

Estate’s $23,990 offer should be accepted. In general, the Supplemental

Statement of Special Circumstances asserted that there were claims and

expenses of $230,768 having priority over the Estate’s unpaid federal

tax liability, including an “Unsatisfied Judgment debt” of $100,000 the

Estate owed to Ms. Washington. The Supplemental Statement of

Special Circumstances stated that because the amount of priority claims

(i.e., $230,768) exceeded the total assets of the Estate available for

distribution (i.e., $203,802), the $23,990 offer was reasonable.

To support the position set forth in the Supplemental Statement

of Special Circumstances, the Estate provided an informal accounting of

its expenses, copies of the supplemental information originally provided

to Settlement Officer Macaulay, a copy of the Divorce Decree, excerpts

from the MSA, and other supporting materials.

B.

Remand to IRS Appeals

The Commissioner’s counsel forwarded to IRS Appeals the

Estate’s revised Forms 433-A (OIC) and 656, including the

10

[*10] Supplemental Statement of Special Circumstances and other

supporting documentation.

The Commissioner then moved the Court to remand the Estate’s

case to IRS Appeals for a supplemental administrative hearing for the

purpose of reviewing the additional information and potentially

negotiating an offer-in-compromise. The Court issued an order granting

the Commissioner’s motion and remanding the case to IRS Appeals on

March 18, 2021.

C.

Supplemental Determination on Remand and

Commissioner’s New Motion for Summary Judgment

the

On remand, the Estate’s case was assigned to Appeals Officer

Charles E. Duff. Appeals Officer Duff held a hearing with the Estate’s

counsel on March 31, 2021. After reviewing the supplemental materials

forwarded to IRS Appeals, Appeals Officer Duff determined that the

beginning value of the Estate was $212,267. 6 He also determined that

only a portion of the Estate’s expenses ($91,355) was valid and senior to

its unpaid federal tax liability. 7 These two determinations resulted in a

reasonable collection potential of $120,912. Appeals Officer Duff noted

that he would not decrease the Estate’s reasonable collection potential

by the value of the purported judgment debt and also declined to deduct

from the Estate’s reasonable collection potential several other smaller

expenses that the Estate argued were senior to the unpaid tax liability.

The Estate provided Appeals Officer Duff with additional

documentation after the March 31 hearing, including informal estate

While the Estate claimed that the beginning value should be $203,802,

Appeals Officer Duff calculated the value by adding the following amounts: 2017

proceeds from a Fidelity section 401(k) account of $154,156; a Bank of America account

balance of $56,629; veterans’ benefits, Social Security benefits, and employer vacation

pay of $5,489; and 2016 distributions from a Fidelity account of $7,722. Appeals

Officer Duff then reduced the sum of those amounts ($223,996) by “allowed debits and

checks” of $11,729. These allowed debits and checks included, among other things,

approximately $9,000 in ATM cash withdrawals after Mr. Washington’s death, $1,000

in checks drawn on the Estate’s account after Mr. Washington’s death, and an

overdraft fee.

6

7 These expenses consisted of the following: federal estate tax of $45,123;

Maryland estate tax of $10,668; a tax preparation fee of $1,500; “state allowed costs”

of $17,306; and burial, cleaning, moving, rent, and parking expenses of $16,128. We

note that the sum of these amounts is $90,725, rather than $91,355, but a transposition

error appears to have led Appeals Officer Duff to use the latter number, to the Estate’s

benefit.

11

[*11] accountings, bank statements, and other records. On April 29,

2021, the Estate’s counsel faxed to Appeals Officer Duff explanations of

the Estate’s arguments regarding special circumstances warranting

acceptance of the Estate’s offer-in-compromise.

The special

circumstances consisted of the purported $100,000 debt to

Ms. Washington (which the Estate argued was supported by a judgment

lien) and the Estate’s payment of a loan on an automobile that was

transferred to Mr. and Ms. Washington’s son after Mr. Washington’s

death. Appeals Officer Duff continued the hearing in a separate

conference on May 10, in which he and counsel for the Estate discussed

the arguments presented in the April 29 facsimile. Appeals Officer Duff

determined that those arguments did not support finding “special

circumstances” that would warrant acceptance of the Estate’s offer-incompromise.

On June 17, 2021, Appeals Officer Duff issued a supplemental

notice of determination rejecting the Estate’s $23,990 offer and

sustaining the notice of intent to levy. In the supplemental notice,

Appeals Officer Duff found that (1) the requirements of any applicable

law or administrative procedure were met and that IRS records

confirmed the proper issuance of the notice and demand, notice of intent

to levy, and notice of a right to a CDP hearing; (2) an assessment was

properly made for each tax and period listed on the CDP notice and that

notice and demand for payment was mailed to the Estate’s last known

address; (3) there was a balance due when the notice of intent to levy

was issued; (4) Appeals Officer Duff had no prior involvement with

respect to the Relevant Tax Years; and (5) the IRS followed all legal and

procedural requirements, and the actions taken or proposed were

appropriate under the circumstances.

Following the issuance of the supplemental notice, we denied the

Commissioner’s first motion for summary judgment without prejudice

to his right to renew the motion based on the supplemental notice.

On September 9, 2021, the Commissioner filed the motion for

summary judgment now before us. The Estate filed a response opposing

the motion (Opposition), and the Commissioner filed a reply. We held a

remote hearing on the Commissioner’s motion on November 16, 2021, at

which both parties appeared and were heard.

We turn now to discussing the merits of the Commissioner’s

motion.

12

[*12]

I.

Discussion

Summary Judgment

The purpose of summary judgment is to expedite litigation and

avoid costly, time-consuming, and unnecessary trials. Fla. Peach Corp.

v. Commissioner, 90 T.C. 678, 681 (1988). The Court may grant

summary judgment when there is no genuine dispute as to any material

fact and a decision may be rendered as a matter of law. Rule 121(b);

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17

F.3d 965 (7th Cir. 1994). In deciding whether to grant summary

judgment, we construe factual materials and inferences drawn from

them in the light most favorable to the nonmoving party (here, the

Estate). Sundstrand Corp., 98 T.C. at 520.

The Estate argued in its Opposition that material facts remain in

dispute in this case. At the hearing, however, both parties agreed that

all remaining disputes are with respect to questions of law rather than

questions of fact. Accordingly, the parties agree that we may properly

resolve this case through summary adjudication.

II.

CDP Issues

A.

The CDP Process

Pursuant to section 6321, the Federal Government obtains a lien

against “all property and rights to property, whether real or personal”

of any person liable for federal tax upon demand for payment and failure

to pay. See Iannone v. Commissioner, 122 T.C. 287, 293 (2004). The lien

arises when tax is assessed. See I.R.C. § 6322.

The Code also authorizes the IRS to levy on (i.e., to seize) property

or property rights of any person who is liable for any tax and has failed

to pay that tax after proper notice and demand. I.R.C. §§ 6331,

7701(a)(11)(B), (12)(A)(i); see also Ramey v. Commissioner, 156 T.C. 1,

2–3 (2021). Because the power to levy is a strong remedy for collecting

unpaid tax, the Code, in section 6330, gives taxpayers the right to a

hearing with IRS Appeals (a CDP hearing). I.R.C. § 6330(b)(1); Ramey,

156 T.C. at 2.

At the CDP hearing, IRS Appeals must verify that the

requirements of any applicable law or administrative procedure have

been met. I.R.C. § 6330(c)(1). Additionally, IRS Appeals generally must

consider any issues raised by the taxpayer. I.R.C. § 6330(c)(3)(B). This

13

[*13] includes offers of collection alternatives, such as offers-incompromise. I.R.C. § 6330(c)(2)(A)(iii). Finally, IRS Appeals must

consider “whether any proposed collection action balances the need for

the efficient collection of taxes with the legitimate concern of the person

[involved] that any collection action be no more intrusive than

necessary.” I.R.C. § 6330(c)(3)(C). See generally Byers v. Commissioner,

740 F.3d 668, 672 (D.C. Cir. 2014), aff’g T.C. Memo. 2012-27; Moosally

v. Commissioner, 142 T.C. 183, 187 (2014); Weber v. Commissioner, 138

T.C. 348, 354 (2012).

B.

Offers-in-Compromise

In general terms, an offer-in-compromise is an agreement

between the Government and a taxpayer to settle a tax liability for less

than the full amount owed. See I.R.C. § 7122(a); Treas. Reg. § 301.71221(a); Internal Revenue Manual (IRM) 8.23.1.1.1(1) (Aug. 23, 2021). 8

Offers-in-compromise are authorized by section 7122(a), which provides

that the Secretary may compromise any civil or criminal case arising

under the internal revenue laws. The decision whether to accept or

reject an offer-in-compromise is left to the Secretary’s discretion. Fargo

v. Commissioner, 447 F.3d 706, 712 (9th Cir. 2006), aff’g T.C. Memo.

2004-13; see also Treas. Reg. § 301.7122-1(c)(1).

The Secretary may accept an offer-in-compromise on three

grounds: (1) doubt as to liability, (2) doubt as to collectibility, and

(3) the promotion of effective tax administration.

See Treas.

Reg. § 301.7122-1(b). Doubt as to liability is not at issue in this case.

1.

Doubt as to Collectibility

The Secretary may accept an offer-in-compromise on a “doubt as

to collectibility” basis when the taxpayer’s assets and income render full

collection unlikely. Id. subpara. (2). Conversely, the Secretary may

reject an offer-in-compromise when the taxpayer’s reasonable collection

potential exceeds the amount it proposed to pay. See Johnson v.

8 The provisions of the IRM can be instructive in understanding the IRS’s

interpretation of a statute, see Ginsburg v. Commissioner, 127 T.C. 75, 87 (2006), and

in ascertaining the procedures the IRS expects its employees to follow, see Wadleigh v.

Commissioner, 134 T.C. 280, 294 (2010). The IRM does not, however, have the force of

law. See Marks v. Commissioner, 947 F.2d 983, 986 n.1 (D.C. Cir. 1991), aff’g T.C.

Memo. 1989-575; Vallone v. Commissioner, 88 T.C. 794, 807 (1987).

14

[*14] Commissioner, 136 T.C. 475, 486 (2011), aff’d, 502 F. App’x 1 (D.C.

Cir. 2013).

In general, any offer substantially below the taxpayer’s

reasonable collection potential is rejected unless special circumstances

justify acceptance of the offer. See Gustashaw v. Commissioner, T.C.

Memo. 2018-215, at *15–16; Mack v. Commissioner, T.C. Memo. 201854, at *10; Rev. Proc. 2003-71, § 4.02(2), 2003-2 C.B. 517, 517. Special

circumstances include:

(1) circumstances demonstrating that the taxpayer would

suffer economic hardship if the IRS were to collect from

him an amount equal to the reasonable collection potential

of the case or (2) if no demonstration of such suffering can

be made, circumstances justifying acceptance of an amount

less than the reasonable collection potential of the case

based on public policy or equity considerations.

Murphy v. Commissioner, 125 T.C. 301, 309 (2005), aff’d, 469 F.3d 27

(1st Cir. 2006); see also IRM 5.8.4.2 (May 10, 2013). Compelling public

policy or equity considerations exist when, because of exceptional

circumstances, collection of the full liability would undermine public

confidence that the tax laws are being administered in a fair and

equitable manner.

See Treas. Reg. § 301.7122-1(b)(3)(ii); see also

Murphy, 125 T.C. at 309; IRM 5.8.4.2(4).

2.

Promotion of Effective Tax Administration

When a taxpayer’s reasonable collection potential exceeds the

taxpayer’s liability—i.e., when the Secretary determines that the

taxpayer is able to pay the liability in full—doubt as to collectibility is

not a ground for compromise. But the Secretary may still enter into a

compromise on effective tax administration grounds if (1) collection of

the full liability would cause the taxpayer economic hardship or

(2) exceptional circumstances exist so that collection of the full liability

would undermine public confidence that the tax laws are being

administered in a fair and equitable manner. Treas. Reg. § 301.71221(b)(3)(i) and (ii). No compromise is permitted for effective tax

administration reasons if compromise of the liability would undermine

compliance by taxpayers with the tax laws. Id. subdiv. (iii).

15

[*15]

3.

Offers-in-Compromise and IRS Appeals Procedures

When an offer-in-compromise is made at a CDP hearing, IRS

Appeals generally forwards the offer to the COIC unit, which

investigates the offer and either accepts it or recommends that IRS

Appeals reject it. See IRM 8.22.7.10.1.1(1) and (2) (Aug. 26, 2020). If the

COIC unit recommends rejection, IRS Appeals reconsiders disputed

items. Id. 8.22.7.10.1.1(3).

In certain circumstances, an IRS Appeals officer evaluating an

offer-in-compromise may request assistance from a specialized unit. See

id. 8.22.7.4.2(1) and (2), 8.23.3.3.1.3 and .4 (Aug. 18, 2017). But even in

those cases, IRS Appeals retains jurisdiction over the offer-incompromise and its disposition. See id. 8.22.7.10.1.1(3), 8.23.3.3.1.4(7)–

(9).

C.

Standard of Review

Section 6330(d)(1) does not prescribe the standard of review that

this Court should apply in reviewing an IRS administrative

determination in a CDP case. The framework for that review is set out

in our cases.

When the validity of the underlying tax liability is properly at

issue in a collection review proceeding, the Court will review the matter

de novo. Giamelli v. Commissioner, 129 T.C. 107, 111 (2007); Davis v.

Commissioner, 115 T.C. 35, 39 (2000). When (as here) the underlying

liability is not properly before us, we review the determination for abuse

of discretion. Byers v. Commissioner, 740 F.3d at 675 (citing Tucker v.

Commissioner, 676 F.3d 1129, 1135–37 (D.C. Cir. 2012), aff’g 135 T.C.

114 (2010) and T.C. Memo. 2011-67); Giamelli, 129 T.C. at 111; Sego v.

Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C.

176, 182 (2000). That is, we do not substitute our own judgment for that

of IRS Appeals and do not decide de novo whether we would have

reached the same determination as IRS Appeals. Rather, we decide

whether IRS Appeals’ determination was arbitrary, capricious, or

without sound basis in fact or law. Murphy, 125 T.C. at 320.

16

[*16] Because the underlying tax liability is not at issue in this case,

we review Appeals Officer Duff’s supplemental determination for abuse

of discretion. 9

III.

Application of CDP Principles to the Estate’s Case

The Commissioner argues that Appeals Officer Duff was correct

when he rejected the Estate’s offers-in-compromise and sustained the

notice of intent to levy. The Estate argues that Appeals Officer Duff’s

determination was an abuse of discretion. For the reasons described

below, we agree with the Commissioner. We address each of the Estate’s

arguments in turn.

A.

Failure to Satisfy Verification Requirements

The Estate first claims that Appeals Officer Duff abused his

discretion by failing to satisfy the verification requirements of

section 6330(c)(1). That provision states that “[t]he appeals officer shall

at the hearing obtain verification from the Secretary that the

requirements of any applicable law or administrative procedure have

been met.” I.R.C. § 6330(c)(1).

The Estate argues that Appeals Officer Duff failed to satisfy this

requirement because provisions of the IRM required that the Estate’s

offers-in-compromise be forwarded to a specialized unit in Austin, Texas

(Austin Office), for consideration. 10 In the Estate’s view, Appeals Officer

Duff’s (and the other Appeals officers’) failure to forward the Estate’s

offers to the Austin Office constituted an abuse of discretion.

We disagree.

The IRM provisions the Estate cites establish that the Austin

Office considers only offers-in-compromise based on effective tax

9 As the Estate recognizes in its Opposition, when this Court remands a case

to IRS Appeals, we review the position taken in the last supplemental determination

instead of any prior notices. See Kelby v. Commissioner, 130 T.C. 79, 86 (2008).

Accordingly, we focus here on Appeals Officer Duff’s determination.

10 In 2002, the IRS established the Austin Office “[i]n order to develop

consistency in the interpretation and application” of the rules regarding offers-incompromise submitted on an “Effective Tax Administration” basis. See IRM

5.8.11.5.1(2) (Oct. 4, 2019); see also T.D. 9007, 2002-2 C.B. 349. See generally

Treas. Reg. § 301.7122-1.

17

[*17] administration. See, e.g., IRM 5.8.11.3.2(1) (Aug. 5, 2015),

5.8.11.5.1. 11 Moreover, the Austin Office investigates only a specific

subset of effective tax administration offers referred to as “non-economic

hardship effective tax administration” offers. These are effective tax

administration cases in which the taxpayer’s liability could be collected

in full without economic hardship, but the taxpayer can nonetheless

demonstrate that a compelling public policy or equity issue provides a

sufficient basis for compromise. 12 See id. 5.8.11.3.2(1) and (2); see also

id. 8.23.3.4.1(2), Ex. 8 (noting that IRS Appeals should contact the

Austin Office if “the taxpayer raises issues involving [Effective Tax

Administration] Public Policy”).

Neither of the Estate’s offers qualified for consideration as an

offer-in-compromise based on effective tax administration. Such

consideration is available only when the taxpayer is able to pay the

balance in full.

Murphy, 125 T.C. at 320 (Treasury

Regulation § 301.7122-1(b)(3)(ii) “makes the ability to make full

payment a precondition to any offer in compromise based on effective

tax administration.”); see also IRM 5.8.11.5(2) (Oct. 4, 2019) (“[U]nless

[the taxpayer] ha[s] the ability to full[y] pay the liability, the offer would

not meet the legal standard for [effective tax administration]

consideration.”). Here, Appeals Officer Duff determined that the Estate

could not pay the outstanding liability in full. And the Estate conceded

as much at the hearing. Accordingly, under the regulations and the IRM

provisions on which the Estate relies, the Estate’s offer did not qualify

for effective tax administration consideration and referral to the Austin

Office would not have been appropriate. 13

11 For example, IRM 5.8.11.5.1(3) states:

Only after consideration has been given to all other potential bases for

acceptance (e.g. [Doubt as to Liability, Doubt as to Collectibility, Doubt

as to Collectibility with Special Circumstances], and/or [Effective Tax

Administration] based on economic hardship) will [Effective Tax

Administration]-Public Policy/Equity be considered. Therefore, all

cases must have been completely developed under all other bases

before transfer will be accepted by the Austin Group . . . .”

These “non-economic hardship” effective tax administration offers are

sometimes referred to in the IRM as “NEH-ETA” offers, see, e.g., IRM 5.8.11.3.2(1), or

“ETA Public Policy” or “ETA Public Policy/Equity” offers, see, e.g., id. 5.8.1.15.5(2)

(Apr. 20, 2021), 5.8.11.3.2.1(4) (Oct. 4, 2019), 8.23.3.4.1(1) (Aug. 18, 2017).

12

13 In reaching this conclusion, we assume, solely for the sake of argument, that

the IRM provisions the Estate cites apply to IRS Appeals Officers and not just to

18

[*18] B.

Rejection of Offers-in-Compromise Based on Allegedly

Erroneous Reasonable Collection Potential Calculations

The Estate’s remaining arguments boil down to a claim that

Appeals Officer Duff abused his discretion in rejecting the Estate’s

revised offer-in-compromise because he miscalculated the Estate’s

reasonable collection potential. We address these arguments below.

1.

Ms. Washington’s Status as a Judgment Lien

Creditor

The Estate’s primary argument on this score hinges on whether

Appeals Officer Duff made an error of law in refusing to recognize

Ms. Washington as a judgment lien creditor of the Estate. Judgment

lien creditors who obtain their judgments before a notice of federal tax

lien is properly filed and meet certain other requirements take priority

over the United States. See I.R.C. § 6323(a); Treas. Reg. § 301.6323(h)1(g). Accordingly, a taxpayer’s reasonable collection potential is reduced

by amounts owed to such judgment lien creditors. See IRM 5.8.4.3.1(1)

(Apr. 30, 2015), 5.8.5.4.1(1) (Sept. 30, 2013). As we explain below,

however, we see no error in Appeals Officer Duff’s determination.

Whether an individual is a judgment lien creditor with priority

over a federal tax lien is a question of federal law. See In re Charco, Inc.,

432 F.3d 300, 304 (4th Cir. 2005) (citing Aquilino v. United States,

363 U.S. 509, 514 (1960)). See generally United States v. McDermott,

507 U.S. 447, 449–50 (1993). As relevant here, under the terms of the

applicable regulation, to be a “judgment lien creditor” a person (1) must

have a valid judgment, (2) from a court of record and competent

collection personnel, as the Commissioner contends. Moreover, in light of our

conclusion, we need not address whether section 6330(c)(1) in fact requires an IRS

Appeals officer to verify that the officer’s own actions at a CDP hearing (as opposed to

actions undertaken by IRS personnel outside of IRS Appeals before the hearing)

comply with the “requirements of any applicable law or administrative procedure.”

But consider section 6330(c)(1) (requiring that an IRS Appeals officer obtain

verification “from the Secretary,” not from IRS Appeals) and Treasury Regulation

§ 301.6330-1(e)(1) (“Prior to issuance of a determination, Appeals is required to obtain

verification from the IRS office collecting the tax that the requirements of any

applicable law or administrative procedure with respect to the proposed levy have been

met.” (emphasis added)).

19

[*19] jurisdiction, (3) for the recovery of specifically designated property

or a certain sum of money. See Treas. Reg. § 301.6323(h)-1(g). 14

There is no dispute here that the Divorce Decree contains a valid

Judgment and that the Superior Court of the District of Columbia is a

court of record that had jurisdiction to enter the Judgment. But the

parties dispute whether the Judgment provides for Ms. Washington to

recover specifically designated property or a certain sum of money. The

Estate maintains that it does. We conclude that the Estate’s position

lacks merit.

a.

Text of the Judgment

To begin with, the Judgment states simply that Ms. Washington

is awarded a divorce and that the superior court retains jurisdiction for

the entry of an appropriate retirement order. The Judgment does not

refer to any specific property or sum of money owed to Ms. Washington.

Nor does it incorporate by reference any other document addressing

such rights. In short, the Judgment on its face offers no support for the

Estate’s argument that Ms. Washington is a judgment lien creditor. See

Travelers Indem. Co. v. Bailey, 557 U.S. 137, 150–51 (2009) (stating that

a court should enforce a court order “according to its unambiguous

terms”).

Despite the Judgment’s silence with respect to any property

rights or any monetary award for Ms. Washington, the Estate argues

that the Judgment is ambiguous and that arrangements outside the four

14 Treasury Regulation § 301.6323(h)-1(g) further provides, in relevant part:

In the case of a judgment for the recovery of a certain sum of money, a

judgment lien creditor is a person who has perfected a lien under the

judgment on the property involved. A judgment lien is not perfected

until the identity of the lienor, the property subject to the lien, and the

amount of the lien are established. Accordingly, a judgment lien does

not include an attachment or garnishment lien until the lien has

ripened into judgment, even though under local law the lien of the

judgment relates back to an earlier date. If recording or docketing is

necessary under local law before a judgment becomes effective against

third parties acquiring liens on real property, a judgment lien under

such local law is not perfected with respect to real property until the

time of such recordation or docketing. If under local law levy or seizure

is necessary before a judgment lien becomes effective against third

parties acquiring liens on personal property, then a judgment lien

under such local law is not perfected until levy or seizure of the

personal property involved. . . .

20

[*20] corners of a divorce judgment can sometimes be made part of the

judgment through the doctrines of merger 15 and incorporation. 16 In

particular, the Estate contends that Ms. Washington obtained a

judgment lien for $100,000—the amount of life insurance proceeds to

which, according to the Estate, Ms. Washington was entitled under the

MSA—because the MSA was incorporated into the Divorce Decree.

The Estate’s arguments raise significant threshold questions,

including (1) whether the text of the Judgment is unambiguous and

therefore forecloses reliance on documents outside the Judgment, and

(2) if the text of the Judgment is ambiguous (thereby permitting review

of the record of the divorce proceedings and the MSA), whether the

prerequisites for incorporation have in fact been satisfied. But we need

not resolve these questions here, because even assuming they should be

resolved in favor of the Estate, the Estate still would not prevail.

b.

Lack of Substantive Support for the Estate’s

Position

As already noted, Ms. Washington’s claim rests on section 5.1 of

the MSA, addressing life insurance. That section states:

The parties’ son is currently named as the beneficiary of

the Husband’s life insurance through his employment with

a face amount of $100,000. The Husband agrees to

irrevocably elect the Wife as the beneficiary of this

coverage on his life for so long as he is employed, and

further agrees not to borrow against or otherwise

encumber such life insurance proceeds. The Husband

15 Although approaches vary among jurisdictions, an outside agreement may

be merged into the divorce judgment. When that happens, the agreement typically is

extinguished, and the rights and obligations of the parties are governed exclusively by

the divorce decree. See, e.g., Doris Del Tosto Brogan, Divorce Settlement Agreements:

The Problem of Merger or Incorporation and the Status of the Agreement in Relation to

the Decree, 67 Neb. L. Rev. 235, 245 (1988). As a result, the terms of an agreement

merged into a divorce decree generally may be enforced through contempt proceedings

(and modified by the court), but do not provide the parties with a cause of action based

on contractual rights. See id. at 244; Duffy v. Duffy, 881 A.2d 630, 638–39 (D.C. 2005).

16 By contrast to merger, an agreement that is incorporated (but not merged)

into a divorce decree typically survives as a separate agreement and is rendered res

judicata for purposes of any subsequent action. See Brogan, supra, at 247. Such

agreements generally are less easily modified by the court, see, e.g., Blount v. Padgett,

261 A.3d 200, 205 n.8 (D.C. 2021); Duffy, 881 A.2d at 640, but often can be enforced

directly by the parties in a breach of contract action, see Brogan, supra, at 245.

21

[*21] agrees that his notarized signature on page [13] of this

Agreement constitutes his irrevocable designation of the

Wife as such beneficiary, and directs Radio One

[Mr. Washington’s employer], upon receipt of a copy of this

paragraph and the signature page, . . . to effectuate the

intent of this paragraph by so listing the Wife as the

irrevocable beneficiary.

For the Estate to prevail, the Divorce Decree must have provided

a judgment either (1) “for the recovery of specifically designated

property” or (2) “for a certain sum of money.”

See Treas.

Reg. § 301.6323(h)-1(g). It is not altogether clear on which of these two

alternatives the Estate relies, but it is clear that neither one produces

the Estate’s desired result.

i.

“Specifically Designated Property”

Take the first alternative. If the Estate’s argument is that the

Divorce Decree represents a judgment “for the recovery of specifically

designated property” in the form of the life insurance policy, then

Appeals Officer Duff’s analysis did not affect Ms. Washington’s

purported interest. Appeals Officer Duff did not include the proceeds of

the life insurance policy in the reasonable collection potential

computation. Therefore, even if Ms. Washington had obtained a

judgment lien with respect to that “specifically designated property”

(that is, the life insurance policy), it would have been irrelevant to

Appeals Officer Duff’s analysis, and he could not have committed any

error adverse to the Estate with respect to it. Put another way, even if

we were to agree with the Estate that the Divorce Decree gave

Ms. Washington a priority claim with respect to the life insurance policy

(a proposition on which we express no view), Appeals Officer Duff’s

determination left that claim untouched because he disregarded the life

insurance policy as an asset of the Estate when determining the Estate’s

reasonable collection potential. Put yet another way, with respect to the

life insurance policy, Appeals Officer Duff’s reasonable collection

potential computations in effect treated Ms. Washington’s interest as

having priority over the United States’ claim.

ii.

“Certain Sum of Money”

Turn next to the second alternative. If the Estate’s argument is

that the Divorce Decree represents a judgment “for a certain sum of

money,” the argument fails for at least three reasons.

22

[*22] First, the text of section 5.1 of the MSA makes plain that

Ms. Washington’s opportunity to obtain $100,000 was entirely

contingent, not a judgment for a certain sum of money collectible

immediately. See, e.g., Don King Prods., Inc. v. Thomas, 945 F.2d 529,

534 (2d Cir. 1991) (“[T]he assignment of a right to receive income

contingent upon the occurrence of a future event . . . does not convey a

present interest to the assignee.”); Carrillo v. Coors, 901 P.2d 214, 217

(N.M. Ct. App. 1995) (surveying the applicable law and concluding that,

absent a contrary statutory provision, “financial obligations in a divorce

decree do not give rise to a judgment lien unless they are for a fixed sum

which is collectible immediately”). For Ms. Washington to be entitled to

recover under the policy, Mr. Washington would have had to die while

employed by Radio One, his employer when he executed the MSA, and

Radio One would have had to retain in force the insurance coverage from

the date of the Divorce Decree to the date of Mr. Washington’s death.

But the Divorce Decree left Mr. Washington free to stop working for

Radio One or to stop working altogether. And, of course, the Divorce

Decree could not prevent Radio One from discontinuing the life

insurance arrangement.

So, as of the date of the Judgment,

Ms. Washington did not have, and could not seek execution based on, a

judgment for a certain sum of money. 17

Second, the Estate argues that if Mr. Washington lost his job, or

if Radio One decided to terminate the life insurance coverage, the MSA

would require Mr. Washington to obtain alternative coverage or

otherwise act to replace the lost benefit to Ms. Washington. We question

the Estate’s reading of the MSA. But, even if the Estate were correct in

its reading, the argument goes to show that any rights Ms. Washington

obtained under section 5.1 of the MSA represented at best a commitment

by Mr. Washington to undertake one or more specific actions other than

the payment of money. 18 An obligation to take such actions is not a

judgment for a sum of money.

17 To the extent the Estate maintains that Ms. Washington’s claim against the

Estate arose on Mr. Washington’s death, when it became clear that Ms. Washington

would not receive the property specified by the Divorce Decree, that claim for money

damages has not been reduced to judgment and therefore could not yet give rise to

judgment lien creditor status.

18 Ms. Washington further maintains that Mr. Washington breached the MSA

by failing to notify his employer that Ms. Washington was the new beneficiary under

the policy. We are not so sure. The MSA required Mr. Washington to designate Ms.

Washington as the beneficiary of his life insurance coverage and then stated: “The

23

[*23] Finally, the regulations specifically provide that “[i]n the case of

a judgment for the recovery of a certain sum of money, a judgment lien

creditor is a person who has perfected a lien under the judgment on the

property involved.” Treas. Reg. § 301.6323(h)-1(g). In determining

whether a lien is perfected, “we look first to the local law setting forth

the lien procedure and its legal consequences.” Don King Prods., Inc.,

945 F.2d at 533 (quoting Hartford Provision Co. v. United States, 579

F.2d 7, 9 (2d Cir. 1978)); see also Johnson v. Commissioner, T.C. Memo.

1999-284, 1999 WL 667281, at *3 n.6 (noting that the regulations

require a judgment lien creditor to comply with local law for creating

and perfecting a judgment). Under the law of the District of Columbia,

for a money judgment to create a lien, the judgment or decree generally

must be “filed and recorded in the office of the Recorder of Deeds of the

District of Columbia.” See D.C. Code §§ 15-101(a), 15-102(a) (2021). The

Estate offered no evidence either before IRS Appeals or in this Court

that it recorded the Judgment as contemplated by D.C. law. Nor does

the Estate argue that Ms. Washington perfected a lien by any other

means, such as by following the procedures described in D.C.

Code § 15-301–323. The Estate argues that no recording is required

under the facts in this case. Opposition at 19. The Estate offers no

authority for this proposition, and the only potentially relevant rule we

have found—D.C. Code § 46-204(b) 19—does not help the Estate, as the

MSA makes no provision for the payment of alimony or maintenance. 20

In short, based on the foregoing, even assuming the MSA should

be viewed as incorporated into the Judgment, Appeals Officer Duff did

Husband agrees that his notarized signature on page [13] of this Agreement

constitutes his irrevocable designation.” Thus, Mr. Washington arguably fulfilled his

obligation under the MSA simply by signing the MSA. From that point, any party,

including Ms. Washington, could have presented the MSA to Radio One and requested

the change. It is not clear to us why the Estate should be held responsible for the

failure to change the beneficiary of the life insurance policy, nor why the United States

should bear the financial burden of Ms. Washington’s failure to undertake a

ministerial act on her own.

D.C. Code § 46-204(b) provides: “An award of alimony, child support, or

maintenance is a money judgment that becomes absolute, vested, and upon which

execution may be taken, when it becomes due.”

19

20 We also note that D.C. Code § 15-101(a) provides that a judgment or decree

for the payment of money rendered in the Superior Court of the District of Columbia

ceases to have any operation or effect 12 years “from the date when an execution might

first be issued thereon, or from the date of the last order of revival thereof.” The

Divorce Decree at issue here was issued in 2006, and the record does not contain any

order of revival. See D.C. Code § 15-103 (2021); see also Massey v. Massey, 210 A.3d

148, 151, 153–54 (D.C. 2019).

24

[*24] not err in refusing to treat Ms. Washington as a judgment lien

creditor in his reasonable collection potential computation.

2.

Inclusion of Proceeds from Section 401(k) Account in

Reasonable Collection Potential

The Estate also argues that a portion of the proceeds of

Mr. Washington’s section 401(k) account should not be included in its

reasonable collection potential because Ms. Washington, as personal

representative, has the right to designate herself rather than the Estate

as the account’s beneficiary. 21 Accordingly, the Estate contends that it

has no interest in that portion of the section 401(k) account proceeds

unless Ms. Washington acts to designate the Estate as beneficiary, and

therefore that the United States’ tax lien cannot attach to the proceeds.

In support, the Estate again argues that the terms of the MSA

were incorporated in the Divorce Decree, “grant[ing Ms. Washington]

the right to designate a beneficiary of those plan proceeds when, as in

this case, no beneficiary has been designated.” Opposition at 23. And

we once again disagree with the Estate’s interpretation of the MSA.

The relevant section of the MSA is titled “Waiver of Pension and

Retirement Rights” and provides as follows:

Except as otherwise set forth herein, each party hereby

expressly waives any legal right he or she may have under

any federal or state law as a spouse or former spouse, or

person with an insurable interest, or otherwise, to

participate as a “spouse” or “former spouse” or payee or

alternate payee or beneficiary or otherwise under the other

party’s . . . 401(k) . . . plan, . . . including, but not limited to,

the right to receive any benefit whether in the form of a

lump sum death benefit . . . .

The upshot is that, in signing the MSA, Ms. Washington

disclaimed any right to Mr. Washington’s section 401(k) account, even if

21 Solely for the sake of analysis, we assume for purposes of this discussion that

the Estate properly raised this argument with Appeals Officer Duff at the CDP

hearing, although the Commissioner disagrees.

25

[*25] she otherwise would have had rights to that account under federal

or state law. To enforce this arrangement, the MSA goes on to provide:

In an effort to comply with the intent of this article; (i) if a

party is unable for any reason to change the beneficiary or

the death benefits of his or her . . . plan . . . , or, (ii) if a

party files an election subsequent to the date of execution

of this Agreement but such election is for any reason

ineffective and the benefits are, in fact, paid to the

surviving party contrary to the intention of this paragraph,

or, (iii) if a party fails to designate a beneficiary and the

plan provides for payment to the “spouse” or “former

spouse,” then in any of such events the surviving party

shall . . . at the direction of and at the sole discretion of the

decedent’s personal representative, either: (A) disclaim

any entitlement to any benefits received or receivable; or

(B) assign all rights to receive such benefits to the estate of

the deceased party or the person designated by the

decedent or the decedent’s personal representative to

receive such benefits; or (C) pay the next after-tax benefits

over to the estate of the deceased party or to the person

designated by the decedent or the decedent’s personal

representative.

The text of the MSA shows that the personal representative’s

authority to direct the assignment or payment of benefits is triggered by

certain conditions. Namely, Mr. Washington must have failed to change

his beneficiary successfully or to provide for a beneficiary, with the

result that Ms. Washington is paid benefits under the terms of the plan

(contrary to the intent of the MSA). None of these conditions was

triggered here. Mr. Washington’s section 401(k) plan did not make any

payments to Ms. Washington as a former spouse. Accordingly, the

enforcement provisions of section 4.6(c) of the MSA remained dormant,

and the personal representative simply had no occasion to exercise any

rights under those provisions.

Moreover, as the Commissioner points out, the actions of the plan

and Ms. Washington herself belie any assertion that the MSA gave the

personal representative a plenary right to change the beneficiary of

Mr. Washington’s section 401(k) account after his death. The balance of

Mr. Washington’s section 401(k) account was always included as an

asset of the Estate in reports Ms. Washington filed with the State of

26

[*26] Maryland’s “orphan’s court.” 22 And that balance was eventually

deposited in the Estate’s bank account.

The Estate’s claim that the personal representative was entitled

to change the beneficiary of the section 401(k) account after

Mr. Washington’s death and before any distributions were made (thus,

defeating the United States’ lien on those proceeds) also flies in the face

of the relevant regulations.

Treasury Regulation § 1.401-1(b)(4)

provides that a plan like the one in which Mr. Washington participated

“is for the exclusive benefit of employees or their beneficiaries.” The

regulations go on to explain that “[t]he term ‘beneficiaries’ of an

employee within the meaning of section 401 includes the estate of the

employee, dependents of the employee, persons who are the natural

objects of the employee’s bounty, and any persons designated by the

employee to share in the benefits of the plan after the death of the

employee.” Treas. Reg. § 1.401-1(b)(4) (emphasis added). A personal

representative is not the employee, and if a plan were to allow the

personal representative to direct proceeds of the plan at will following

the employee’s death, that plan would not comply with section 401. See

id.

Based on the foregoing, we conclude that Appeals Officer Duff did

not abuse his discretion in determining that the section 401(k) proceeds

were properly includible in the Estate’s reasonable collection potential.

3.

Other Alleged Reasonable

Calculation Errors

Collection

Potential

The Estate further contends that certain other expenses were

erroneously excluded from the Estate’s reasonable collection potential

and that Appeals Officer Duff “double-counted” items in calculating

reasonable collection potential. 23 But we have consistently held that

errors in reasonable collection potential calculations are harmless, even

when considering offers-in-compromise made on a “doubt as to

collectibility with special circumstances” basis, when the correct, or

allegedly correct, reasonable collection potential is still greater than a

22 The orphan’s courts are Maryland’s probate courts.

A.2d 812, 816 (Md. 2000).

Radcliff v. Vance, 757

23 For example, the Estate alleges that Appeals Officer Duff erroneously

included in the reasonable collection potential computation veterans’ benefits that

were ultimately returned and a $20,000 tuition payment for the benefit of the

Washingtons’ son, of which $10,000 was returned.

27

[*27] taxpayer’s offer. See, e.g., Gustashaw, T.C. Memo. 2018-215,

at *23–24 & n.33 (citing Estate of Duncan v. Commissioner, T.C. Memo.

2016-204, at *22 n.5, aff’d, 890 F.3d 192 (5th Cir. 2018)) (finding that in

evaluating the taxpayers’ revised offer-in-compromise submitted on a

“doubt as to collectibility with special circumstances” basis, the

settlement officer made errors in calculating the taxpayers’ reasonable

collection potential; however, the errors were harmless because the

taxpayers’ reasonable collection potential, even when adjusted for the

settlement officer’s errors, far exceeded the offer-in-compromise

amount); see also Tucker v. Commissioner, 676 F.3d at 1136–37 (holding

that this Court is not barred from upholding a settlement officer’s

rejection of an offer-in-compromise even when the settlement officer

made errors in calculating the taxpayer’s reasonable collection

potential). 24

Aside from the Estate’s arguments relating to the life insurance

and section 401(k) account proceeds, which we have addressed above,

none of the remaining errors alleged by the Estate is significant

enough—either alone or combined with others—to reduce the Estate’s

reasonable collection potential below the amount of its revised offer-incompromise. Therefore, even if the Estate’s assertions were correct, the

mistakes would constitute harmless error and would not amount to an

abuse of discretion. See Estate of Duncan, T.C. Memo. 2016-204, at *22

n.5 (“Determination of [the taxpayer’s] exact [reasonable collection

potential] would be a meaningless exercise where (as here) the

taxpayers admitted that their reasonable collection potential exceeded

their offer . . . .”); see also Tucker v. Commissioner, 676 F.3d at 1137 (“If

the agency’s mistake did not affect the outcome, if it did not prejudice

the petitioner, it would be senseless to vacate and remand for

reconsideration.” (quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 799

(D.C. Cir. 2004))).

24 Alphson v. Commissioner, T.C. Memo. 2016-84, at *16 (“Even if the

settlement officer makes some errors in calculating the reasonable collection potential,

we uphold determinations when the taxpayer’s offer-in-compromise was far less than

the correct reasonable collection potential.”); Johnson v. Commissioner, T.C. Memo.

2007-29, 2007 WL 415319 (finding that when error in reasonable collection potential

calculations is corrected, and reasonable collection potential still exceeds offer-incompromise amount, the erroneous calculation did not amount to an abuse of

discretion), aff’d in part sub nom. Keller v. Commissioner, 568 F.3d 710 (9th Cir. 2009);

Lindley v. Commissioner, T.C. Memo. 2006-229, 2006 WL 3040938, at *6 (finding that

settlement officer’s errors in calculating reasonable collection potential “were harmless

because, even when corrected, [the taxpayers’] reasonable collection potential exceeds

their offer amount”), aff’d in part sub nom. Keller v. Commissioner, 568 F.3d 710.

28

[*28] C.

Consideration of Special Circumstances

Finally, the Estate argues that Appeals Officer Duff abused his

discretion by not fully or properly considering the factors listed in IRM

5.8.11.3.2 to assist IRS employees in determining whether special

circumstances warrant acceptance of an offer-in-compromise in an

amount less than a taxpayer’s reasonable collection potential. It is not

necessary for an IRS Appeals officer to “specifically list in the notice of

determination every single fact that [he] considered in arriving at the

determination” that no special circumstances exist.

Johnson v.

Commissioner, 2007 WL 415139, at *5. Additionally, IRM provisions

are not binding, nor do they confer specific rights on taxpayers. 25 In any

event, the record shows that Appeals Officer Duff did consider the

Estate’s Supplemental Statement of Special Circumstances and the

facsimile sent to Appeals Officer Duff on April 29, 2021, and determined

that special circumstances warranting the acceptance of the Estate’s

revised offer on a “doubt as to collectibility with special circumstances”

basis were not present.

The Estate’s main contention in the Supplemental Statement of

Special Circumstances was that the Estate was insolvent, in large part

because of Ms. Washington’s alleged judgment lien on the Estate. As we

have previously discussed in Part III.B.1 above, we see no error in

Appeals Officer Duff’s determination that any claims Ms. Washington

might have with respect to Mr. Washington’s life insurance proceeds

should not affect the Estate’s reasonable collection potential

calculations.

The Estate raised other arguments 26 in its Opposition alleging

special circumstances. But the record indicates that the Estate failed to

raise these arguments either during the initial hearing or during the

supplemental hearing. In the circumstances here, we cannot hold that

Appeals Officer Duff abused his discretion by not considering arguments

25 See supra cases cited note 8; see also Fargo v. Commissioner, 447 F.3d at 713

(explaining that the IRM does not have force of law, certain provisions are merely

advisory in nature, and the IRM gives IRS Appeals officers considerable discretion to

accept or reject offers-in-compromise); Riland v. Commissioner, 79 T.C. 185 (1982)

(finding that the failure to abide by procedures contained in the IRM is not a violation

of due process).

26 The special circumstances alleged included Ms. Washington’s service to the

Estate as personal representative, her advancing of funds to the Estate (which were

ultimately reimbursed from the Estate’s account), and her time and effort expended in

resolving the Estate’s state and federal tax liabilities.

29

[*29] that were not presented to him. See Giamelli, 129 T.C. at 115;

see also Boulware v. Commissioner, 816 F.3d 133, 136 (D.C. Cir. 2016),

aff’g T.C. Memo. 2014-80.

Even assuming that these arguments were properly before IRS

Appeals, we would not find their rejection to be an abuse of discretion

on the facts of this case. When boiled down to their essence, the Estate’s

arguments amount to a plea (1) that Mr. and Ms. Washington’s son be

permitted to retain $100,000 in life insurance proceeds paid to him

under the policy maintained by Mr. Washington’s employer, (2) that

Ms. Washington (who, under the MSA, was supposed to have received

the life insurance proceeds) be permitted to recover instead $100,000

from a retirement account to which she had disclaimed all rights, and

(3) that the United States be required to compromise its claim for tax

due on the substantial income that Mr. Washington earned during the

Relevant Tax Years. We do not see how effective tax administration

could possibly support such a result. See Treas. Reg. § 301.71221(b)(3)(iii).

IV.

Conclusion

For the reasons set out above, the Commissioner is entitled to

judgment as a matter of law.

To reflect the foregoing,

An appropriate order and decision will be entered.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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