Portwine v. Comm'r
2015 T.C. Memo. 29
Tax Ct.2015Background
- Petitioner Ernest D. Portwine, proceeding pro se, did not file Federal income tax returns for 2002-2007, and the IRS prepared substitutes under §6020(b).
- The IRS issued notices of deficiency for 2002-07 on various dates, mailed to Portwine at Sheridan, Wyoming, who did not petition the Tax Court to contest them and the liabilities were assessed.
- During CDP proceedings, the IRS issued a levy notice (Sept. 27, 2012) and a Notice of Federal Lien Filing (Oct. 25, 2012) for 2003-2007, prompting Portwine to request a collection hearing.
- Portwine requested face-to-face CDP hearings and audio recording, but the Appeals officer scheduled telephonic hearings and required financial information (Form 433-A, Form 433-B, returns for 2008-11, and proof of estimated payments).
- Portwine did not provide the requested information or participate in the telephone CDP hearing; the Appeals officer issued last-chance letters and ultimately two notices of determination sustaining the lien and levy.
- Portwine petitioned the Tax Court for review of the CDP determinations; the court held on the issues of underlying liability challenge, verification of mailing, hearing modality, and possible §6673 penalties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Challenge to underlying liabilities at CDP | Portwine disputed underlying liabilities on Forms 12153 | Portwine failed to provide evidence or attend to dispute the liabilities | Portwine did not properly raise the underlying liabilities; no review of liabilities |
| Verification of deficiency notices | Portwine argued the notices of deficiency were not mailed | Respondent relied on mailing records and copies of notices | Verification found sufficient; mailing evidenced by copies and lists despite incomplete listing |
| Face-to-face CDP hearing denial | Portwine claimed abuse of discretion by denying face-to-face hearing | Taxpayer did not provide requested information and did not participate meaningfully | No abuse of discretion; telephone/other hearing permissible; no productive hearing expected |
| Section 6673(a)(1) penalty | Petitioner argues frivolous positions; seeks sanctions | Petitioner did not cooperate or present evidence | Penalty not imposed, but admonished for future conduct |
Key Cases Cited
- Sego v. Commissioner, 114 T.C. 604 (2000) (when underlying liability is properly at issue, de novo review; otherwise abuse of discretion)
- Goza v. Commissioner, 114 T.C. 176 (2000) (underlying liability review standards; abuse of discretion framework)
- Katz v. Commissioner, 115 T.C. 329 (2000) (face-to-face hearing not required; appeals procedures govern)
- Coleman v. Commissioner, 94 T.C. 82 (1990) (burden of proof on mailing notices; presumption of regularity; documentary mailing evidence)
- Hoyle v. Commissioner, 131 T.C. 197 (2008) (presumption of mailing requires complete records; underlying procedures reviewed)
- Magazine v. Commissioner, 89 T.C. 321 (1987) (proof of mailing via documentary evidence and procedures)