Martin G. Plotkin, T. C. Memo. 2023-125, filed 10/19/23, is back for Appearance No. 4 (count ’em, four) on this my blog. Judge Morrison can walk you through the procedural mish-mash that concludes today. I’ll not try; Martin’s ingenuity and Appeals’ missteps would defy even Campbell’s ability to condense.

At the end of the trail, Appeals issues a second supplemental NOD on the sole issue whether Martin is eligible for CNC. He isn’t, because he did not submit Form 433-A and backups.

Martin says Appeals abused its discretion because he never asked for CNC status. But he got this remand because he had told the AO that all his income was Social Security so he couldn’t pay, hence Appeals failed to balance intrusiveness of levy with ability to pay.

“… petitioner argued that the determination by Appeals regarding the balancing test was inconsistent with the proposition that ‘[p]etitioner’s only income came from his Social Security Benefits, which were insufficient to provide for any payment of the liability.’ We agreed with petitioner’s argument inasmuch as we withdrew the portions of the April 2019 Memorandum Opinion holding that Appeals did not err in applying the balancing test of section 6330(c)(3)(C) because of petitioner’s failure to submit the requested financial information.” T. C. Memo. 2023-125, at p. 6.

But the sole issue on remand is whether Martin’s only income is Social Security. Hence IRM 5.16.1.2.9(1)–(5) (May 22,2012), which says, if petitioner can show this, where only income is from Social Security, that means hardship, .

Since Martin said several times he couldn’t pay, CNC consideration was appropriate.

“The corollary to petitioner’s argument that financial information should be required only for taxpayers who request CNC status is that no such information should be required for Appeals to apply the balancing test under section 6330(c)(3)(C). This argument is unavailing. Looking at the second supplemental notice of determination through the lens of section 6330(c)(3)(C), we discern no abuse of discretion by Appeals. The second supplemental notice of determination concluded that petitioner refused ‘to provide the information required’ and that therefore it was Appeals’ judgment that ‘the Notice of Intent to Levy balances the efficient collection of taxes with your legitimate concern that the collection action be no more intrusive than necessary.’” T. C. Memo. 2023-125, at pp. 15-16.

If you claim hardship, you must prove hardship. Whether your avowed remedy is CNC or not, CNC is your remedy. The back taxes don’t go away.