That’s what Judge Alina I. (“AIM”) Marshall does to IRS in John W. Jermaine, 7458-19L, filed 8/20/21*. IRS gives John a SNOD, which includes a $94 deficiency, which he pays, but also reverses the $9K withholding credit John claimed and was refunded. John petitions the SNOD, but gets tossed for want of the sixty Georges. Comes then the NITL, which John answers with a 12153, asking for OIC, lien withdrawal, and innocent spousery. He also claims he paid the deficiency.

While the CDP is pending, John sues IRS and some other people in USDCMDTN. The other people get let out of the case, and John gets tossed with prejudice per FRCP 16(f); John didn’t seem to follow Court orders, which gets USDJs peevish.

Anyway, IRS wants summary J tossing John’s petition from the NOD. John wants to go back to USDCMDTN, but that’s out. He petitioned the NOD timely; that’s enough, and he isn’t asking for this case to be dismissed. And John isn’t suing for a refund per 28 USC §1346 anyway, even iof he hadn’t been tossed in USDCMDTN.

John can’t challenge the $94 deficiency, because he petitioned that and got tossed. There’s also no lien to withdraw.

But the $9K withholding refund is another story.

“The attachment to the notice of determination states: ‘[t]he taxpayer challenged the existence and amount of the liability within an attachment to the Form 12153, Request for a Collection Due Process or Equivalent Hearing. The taxpayer was precluded from raising the liability issue during this CDP hearing process due to a prior opportunity and was advised as such by the original Appeals Officer assigned the case.’

“Reading the attachment to the notice of determination in the light most favorable to the taxpayer, it might be that petitioner raised the $9,279 withholding at his IRS Appeals conference but was not permitted to provide evidence. This interpretation of the attachment to the notice of determination would not permit the Court to hold for respondent on summary judgment….

“In respondent’s motion, respondent does not address whether petitioner is entitled to raise the $9,279 withholding tax credit as a challenge to his underlying liability under section 6330(c)(2)(B). Respondent also does not address whether petitioner’s arguments with respect to this amount might be reviewed as a verification issue pursuant to section 6330(c)(1) rather than an underlying liability issue pursuant to section 6330(c)(2)(B). See Dixon v. Commissioner, 141 T.C. 173, 183-184, 184 n.6 (2013). We will not grant summary judgment on this issue….” Order, at p. 9.

For the Dixon story, see my blogpost “The Great Dissenter – Redivivus,” 9/3/13.

Did the SO check all the boxes to make sure all the requirements for sustaining the lien were met? Or did the SO just rely on the flat statement that John had had a chance to contest?

John also questioned whether a $114 levy on his Social Security, while he still had a chance to petition the NOD timely, was proper. IRS has only the excuse that the levy arose from the toss of John’s petition from the SNOD, not the NOD. Judge AIM isn’t buying.

“Based on the record before us and respondent’s failure to offer statutory, regulatory, or caselaw citations addressing the levy, we are unable to conclude as a matter of law that SO K did not abuse her discretion in determining that the requirements of any applicable law and administrative procedure have been met. Because we are unable to determine whether respondent abused his discretion in this regard, we deny respondent’s motion with respect to the issue of whether SO K abused her discretion in making the determination to sustain the proposed levy.” Order, at p. 13. (Name omitted).

So there needs to be a trial on the levy and innocent spousery.

*John W. Jermaine 7458-19L 8 20 21