David Michael Geoghegan, Docket No. 18055-14 L, filed 7/16/15, self-reported an $84K liability. David Michael couldn’t pay, he says, IRS has hit him with a NFTL, so he wants an IA (that’s an installment agreement for you civilians).

But David Michael is a Man in a Hurry; he wants a “Fresh Start” high-speed IA. My astute readers will reply, “But Michael David, you owe more than $50K. Re-read IR-2012-31, March 7, 2012. Ye’re a wee bit ower t’score, as they say in Aberdeen.” That’s Scotland, not South Dakota.

David Michael offers to scrounge up $34K and hand it over, if IRS will then let him board the Streamline Express.

No, says Appeals, you were talking about dropping the NFTL, and we can only do that if you owe $25K, not $50K.

But IRS reckoned without that Obliging Jurist, Judge David Gustafson.

“On the Form 12153 Mr. Geoghegan indicated that he wanted an installment agreement (‘IA’). Notably, on the Form 12153 Mr. Geoghegan did not request withdrawal of the lien, however, he did write ‘Fresh Start Program’ in the “Other” category. The Appeals Settlement Officer (‘SO’) scheduled the collection due process (‘CDP’) hearing…. At the … CDP hearing, Mr. Geoghegan stated that he wanted to enter into a payment plan under the IRS’s Fresh Start Program, but he understood that to qualify for the Fresh Start Program he had to reduce his unpaid tax liabilities from approximately $84,000 to under $50,000. He stated that at that time he did not have 34,000 to reduce his liabilities but that he intended to do so and that his ultimate goal was for the IRS to withdraw the NFTL” Order, at p.2.

So the SO bounced David Michael with a NOD after checking out the Fresh Start rules, thinking David Michael wanted the lien released for $50K, but the rules say only $25K gets you a release.

“On the Form 12153 Mr. Geoghegan did not check the box indicating that he wished to have the lien withdrawn.” Order, at p. 3 (emphasis by the Court).

So Judge Gustafson is confused whether David Michael really was trying for a lien release off a $50K streamliner, which is a no-no.

“On its face, the motion for summary judgment reflects a genuine issue of material fact as to whether the IRS abused its discretion in failing to provide Mr. Geoghegan an opportunity to submit a collection alternative without lien withdrawal under the Fresh Start Program or to consider his informally requested IA for $50,000 under the Fresh Start Program.” Order, at p. 4.

So IRS, seeking summary judgment, now claims that, no matter what, IRM 5.15.1.4 knocks David Michael out of the box, but since neither the NOD nor the SO’s declaration in support of summary J mention that, Chenery sinks that one.

Hint to IRS counsel: don’t try wild-carding in new reasons in a CDP NOD case when the administrative record is bereft of support; it only annoys Tax Court judges.

Summary J denied without prejudice, but as the tax was reported on a MFJ return and the NOD was issued both to David Michael and Mrs. David Michael, if Mrs. David Michael wants in on the fun, let her ratify the petition.