MICHAEL H. BOULWARE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 23525-12L.
UNITED STATES TAX COURT
Filed May 6, 2014.
T.C. Memo. 2014-80
D. Anthony Abernathy and Peter R. Hochman, for respondent.
MEMORANDUM OPINION
LARO, Judge: This case is before the Court for review of a notice of determination sustaining the issuance of a notice of intent to levy to collect
The parties submitted this case to the Court fully stipulated for decision without trial under Rule 122. The issues before us are:
- whether respondent abused his discretion in denying petitioner‘s request for an installment agreement relating to the years at issue. We hold he did not; and
- whether respondent abused his discretion in denying petitioner‘s request for a face-to-face hearing. We hold he did not.
Petitioner was a resident of Hawaii when he petitioned this Court.
Background
1. Deficiency Case and Appeal
Petitioner is the president and 100% shareholder of Hawaiian Isle Enterprises, Inc., and HIE Holdings, Inc. Petitioner‘s income tax liabilities for the years at issue are based upon an opinion rendered by this Court on June 8, 2009, in HIE Holdings, Inc. v. Commissioner, T.C. Memo. 2009-130 (deficiency case), affirmed by the Court of Appeals for the Ninth Circuit on April 5, 2013, 521 Fed.
Following this Court‘s entry of decision in the deficiency case, on July 19, 2010, petitioner moved to waive the
As mentioned above, the posting of a bond is not a requirement to an appeal of our decisions. Instead, the posting of the bond serves to guarantee that the Commissioner will be able to collect the deficiencies determined by this Court (plus interest) and to preclude the Commissioner otherwise from assessing and collecting those amounts before the appellate review is complete. Absent petitioners’ posting of a bond fixed at our customary amount, we consider it to be inappropriate in the setting at hand to preclude the Commissioner, if he desires, from assessing and collecting those deficiencies (plus interest) during the pendency of petitioners’ appeal. Such an appeal, which would first go to the Court of Appeals for the Ninth Circuit and then most likely to the U.S. Supreme Court, could easily last more
than 2 years. To the extent that the Government during the pendency of the appeal lacked a lien as to the full amount of the deficiencies that we determined (plus interest), the Government will stand simply as an unsecured creditor that remains vulnerable to petitioners’ dissipation of their assets. We understand that the posting of the bond entails privation and perhaps some suffering, and we have empathy for petitioners’ situation. Yet, the purpose of the bond is to protect the Government when and if it is necessary to collect the deficiencies and interest due by virtue of our decisions. In this regard, we take note of the fact that Michael Boulware hid millions of dollars of assets from the Government and from others in the context of these cases and that he participated in other deceptive behavior, some of which led to his criminal conviction. Given Michael Boulware‘s conduct, the need to protect the Government with a full bond is self-evident. * * *
In the same order we set the amount of the bond in accordance with our customary practice for appeal bonds, quoting Barnes Theatre Ticket Serv., Inc. v. Commissioner, 50 T.C. 28, 29 (1968), as follows:
The customary practice of the Tax Court is to fix an appeal bond equal to the amount of the deficiency for which review is sought, plus any additions to the tax and interest running from the time of the filing of the return until the time when the appellate review of the decision is expected to be completed--ordinarily 2 1/2 years after the last date on which a petition for review could be filed; but of course, the amount of the bond cannot exceed twice the deficiency. * * *
On August 19, 2010, petitioner appealed the deficiency case to the Court of Appeals for the Ninth Circuit but did not post a bond pending appeal. On appeal
2. IRS Collection Action
On February 24, 2011, respondent sent petitioner a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 informing him that a notice of Federal tax lien (NFTL) would be recorded with respect to his income tax liabilities for the years at issue. The letter further informed petitioner of his right to a collection due process (CDP) hearing and that he had until April 4, 2011, to request such a hearing. On February 25, 2011, respondent recorded an NFTL with respect to petitioner‘s income tax liabilities for the years at issue.3
On or about February 28, 2011, petitioner submitted a Form 2848, Power of Attorney and Declaration of Representative, designating Jonathan H. Steiner, Alan E. Kobayashi, and Jon M. Yasuda as his representatives for taxable years 1998 through 2004.
On May 18, 2011, respondent sent petitioner a Letter 1058, Final Notice, Notice of Intent to Levy and Notice of Your Right to a Hearing, with respect to petitioner‘s income tax liabilities for the years at issue. The letter further informed
On June 14, 2011, petitioner submitted a Form 12153, Request for a Collection Due Process or Equivalent Hearing, with respect to his tax liabilities for the years at issue. On the form petitioner selected two checkboxes marked “Filed Notice of Federal Tax Lien” and “Proposed Levy or Actual Levy” as the basis for his hearing request. In an attachment to the Form 12153 petitioner stated his belief that a lien withdrawal was warranted because:
1. In addition to the years 1998, 1999, 2001 & 2002 MHB [Michael H. Boulware] has received tax assessments for the years 2003 & 2004 and is currently working with Gary Lipetzky (Honolulu IRS Appeals) to resolve unagreed issues.
2. MHB has also appealed the decision of the Tax Court that resulted in taxes due for the years 1998, 1999, 2001 & 2002. MHB contends that the filing of those liens were premature and should have occurred after the appeals process has run its course. It is our belief that the amount of taxes that the IRS has assessed may not be correct.
Finally, petitioner requested on his Form 12153 a face-to-face meeting.
On or about May 26, 2011, petitioner submitted a Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, in which he disclosed his monthly income and expenses as well as his personal assets. In
On June 22, 2011, Revenue Officer Colin P. Kelly (RO Kelly) prepared a monthly income and expense analysis for petitioner. On the basis of petitioner‘s 2010 tax return, which disclosed monthly rental income of $13,673, RO Kelly increased petitioner‘s monthly rental income to $13,000, for a total monthly income of $46,000. In addition, RO Kelly determined that only $16,372 of petitioner‘s claimed monthly living expenses constituted allowable expenses. Accordingly, RO Kelly determined petitioner‘s monthly ability to pay to be $29,628. With regard to petitioner‘s equity in assets, RO Kelly noted that petitioner had a section 401(k) plan account with $990,000 of equity and life insurance policies (with policy numbers ending in 1286 and 2912) with cash value of $53,400.
On or around June 27, 2011, petitioner‘s case was transferred to respondent‘s Seattle Appeals Office. On or around August 1, 2011, petitioner‘s case was again transferred to respondent‘s Portland Appeals Office. In a letter dated August 19, 2011, respondent informed petitioner that his case had been received for consideration by the Portland Appeals Office.
On February 13, 2012, Settlement Officer Kimberly A. Martin (SO Martin) sent petitioner a letter informing him that a telephone conference had been
You are not able to dispute the liability because the tax liability that is the subject of this hearing is based on a judicial decision and although you have appealed this decision to the Ninth Circuit Court of Appeals the Service is not required to withhold collection absence [sic] the posting of a bond which was not done. In addition, the Ninth Circuit ruled in case number 10-72589 in order dated 3/11/2011 that your motion to stay collection was denied. Your request to have the Collection Due Process hearing postponed pending the outcome of your appeal cannot be granted.
With regard to the possibility of a collection alternative, SO Martin informed petitioner:
Appeals cannot approve an installment agreement or accept an offer-in-compromise unless all required estimated tax payments for the current year‘s income tax liability have been made. If you wish to pursue one of these alternatives during the CDP hearing process, you must arrange for the payment of any required estimated tax payments. Delinquent estimated tax payments can be included in an installment agreement. However, the estimated tax payments must be paid in full
before an offer-in-compromise can be accepted. Our records indicate that you have not made estimated tax payments for the following period(s): 2011.
Finally, SO Martin gave petitioner a list of financial documents that he had to provide before she could consider any collection alternative.
On February 27, 2012, petitioner sent SO Martin a letter asking for a face-to-face hearing. On February 28, 2012, SO Martin replied to petitioner, stating:
You[r] request for a face to face conference can be discussed once you have provided the information in my 2/13/2012 letter and we have held the telephone conference. There is currently not a Settlement Officer located in Hawaii to hold a face to face conference.
On the same day petitioner responded to SO Martin requesting a continuance of the March 13, 2012, conference call. Petitioner requested that the conference call be rescheduled for after April 15, 2012, since Mr. Kobayashi, his primary certified public accountant, would be busy until after the tax return filing deadline. Petitioner further explained that his controller was still in the process of gathering the information SO Martin had requested and that his opening brief on appeal before the Court of Appeals for the Ninth Circuit had only recently been submitted.
On February 29, 2012, SO Martin informed petitioner that she had rescheduled the conference call to April 19, 2012, and that she had extended the
As for the face to face hearing request we can discuss that during our telephone conference. If after the telephone conference(s) you still are requesting a face to face hearing we can discuss various possibilities. The travel budget and if we have other cases requiring face to face meetings in Hawaii during that time are factors we consider. Sometimes in these situations we can arrange to have you meet with a local Appeals Officer and I could participate on the telephone. We can explore various options if needed.
On March 30, 2012, petitioner sent SO Martin the requested financial documents, including an updated Form 433-A. In this Form 433-A petitioner disclosed monthly wage income of $33,000, monthly rental income of $9,500, and monthly living expenses of $19,933. Petitioner further disclosed that his section 401(k) plan account had a current value of $900,000 and his life insurance policies (with policy numbers ending in 1286 and 2912) had cash value of $52,437. Finally, petitioner‘s financial documents included a life insurance policy (with policy number ending in 5184), which was assigned to and had the beneficiary designated as First Interstate Bank.
On the basis of various rental agreements SO Martin determined that petitioner owned a 60-year leasehold interest in 2864 Mokumoa St., Honolulu, Hawaii, for $17,000 a month, which he in turn subleased to HIE Holdings, Inc., for
On April 3, 2012, petitioner again requested a continuance of the telephone conference. Petitioner explained that on March 29, 2012, he had received an order from the Court of Appeals for the Ninth Circuit directing him to submit certain briefing by April 19, 2012. Petitioner requested that the conference call be rescheduled to April 26 or 27, 2012. On April 10, 2012, SO Martin replied to petitioner, agreeing to reschedule the conference to May 2, 2012.
On May 2, 2012, SO Martin conducted the telephone conference. During the conference petitioner stated that he might still request a face-to-face hearing. In response SO Martin explained that they would discuss petitioner‘s financial information first and then decide whether a face-to-face hearing was still necessary or desirable. With regard to an installment agreement, SO Martin stated that it could cover only the years at issue--it could not cover tax years 2003 and 2004
SO Martin also advised petitioner that he had to liquidate his equity in certain assets before she would consider an installment agreement. These assets included petitioner‘s section 401(k) plan account worth approximately $900,000, from which he could make withdrawals penalty free, and his life insurance policies worth approximately $52,437. Finally SO Martin informed petitioner that she had determined his ability to pay to be approximately $29,000 per month.
On May 18, 2012, petitioner sent SO Martin a letter proposing a $12,500-per-month installment agreement, which would cover tax years 1989, 1990, 1991, 1992, 2003, and 2004, in addition to the years at issue. With regard to the liquidation of assets, petitioner stated:
As you are aware, the tax liability in this matter remains subject to dispute, and the Tax Court deficiency determination is currently on appeal before the Ninth Circuit. Mr. Boulware does not want to liquidate the 401K and life insurance policy (incurring taxes and creating other hardships) unless and until said liability becomes final.
Mr. Boulware would therefore propose that a collateral agreement be entered into with the IRS, under which Mr. Boulware agrees to voluntarily liquidate and pay to the IRS these assets within 45 days of the exhaustion of all appeal rights on the Tax Court decision.
The letter further advised SO Martin as follows:
In addition, the Companies plan to take steps to decrease Mr. Boulware‘s officer loan account balance. As you are aware, the Companies are currently paying Boulware rent on the property located at 1864 Mokumoa Street. Going forward, the Company plans to instead credit payment of such rent against Mr. Boulware‘s officer loan account. This will decrease Boulware‘s monthly income (to just his wages of $33,000 per month), but will free up additional funds for the Companies, which will be available for payment of the Companies tax liabilities.
* * * Please note that Mr. Boulware is currently involved in negotiation and possible litigation of alleged tax deficiencies from other years, and that he will continue to incur attorneys’ and professional fees and costs related to those proceedings, which expenses are not reflected on Mr. Boulware‘s Form 433-A. He may also face significant State taxes.
On June 28, 2012, SO Martin responded regarding petitioner‘s proposed installment agreement. With regard to the scope of the installment agreement, SO Martin advised petitioner as follows:
[Y]our request to include tax periods that are not assessed into an installment agreement cannot be granted. You have petitioned the Tax Court on the Statutory Notice of Deficiency for the 2003 and 2004 tax years and the 89, 90, 91 and 92 tax years are still in the examination stage of the audit process.
Your payment proposal of $12,500/month cannot be accepted. * * * [T]he proposed dollar amount does not reflect * * * [petitioner‘s] ability to pay. The taxpayer is allowed ordinary expenses for his health and welfare, the professional fees and costs not reflected in the form 433A do not qualify as necessary living expenses.
With respect to the liquidation of assets, SO Martin responded:
In your most recent letter you state that the taxpayer does not want to liquidate his assets as you still have litigation pending before the Ninth Circuit and proposes waiting until all of his appeal rights have been exhausted. As previously stated in my initial conference letter, the subject tax liabilities are based on a judicial decision and although you have appealed the decision to the Ninth Circuit Court of Appeals the Service is not required to withhold collection absence [sic] the posting of a bond which was not done. In addition the Ninth Circuit ruled on 3/11/2011 that your motion to stay collection was denied. Your request to enter into a collateral agreement and wait to liquidate the taxpayer‘s assets cannot be granted.
With respect to petitioner‘s tax compliance, SO Martin stated: “During our telephone conference you were advised that the taxpayer must be in full compliance to be eligible for an installment agreement. Our records indicate that the taxpayer has not made any estimated tax payments for 2012.” Finally, with respect to petitioner‘s plans to pay down his corporate loan account with his rental income, SO Martin responded: “The taxpayer‘s plans to begin paying down his officer‘s loan account at this juncture when the loans have been accruing since
SO Martin concluded her letter as follows:
Unless the taxpayer is willing to liquidate his 401K plan and life insurance, be in compliance, and agree to an installment plan that reflects his ability to pay, your proposed collection alterative of an installment agreement cannot be granted and the proposed levy and lien filing will be sustained. Please respond to me by July 23, 2012[;] otherwise I will issue a determination letter with my findings. [Emphasis added.]
On July 23, 2012, petitioner sent SO Martin a letter requesting an extension of time until August 15, 2012, to respond to her letter dated June 28, 2012, and to make estimated tax payments for 2012. In that same letter petitioner requested a face-to-face hearing before the issuance of a notice of determination.
On July 30, 2012, SO Martin discussed the case with her Appeals team manager, who agreed that petitioner was not entitled to additional time to respond for the following reasons: (1) petitioner was not in full compliance; (2) petitioner was unwilling to liquidate his assets; and (3) petitioner was unwilling to enter into an installment agreement that reflected his ability to pay.
On August 7, 2012, SO Martin advised petitioner via telephone that she could not recommend accepting his proposed installment agreement because he was not in full compliance, he was unwilling to liquidate his assets, and he
On August 21, 2012, SO Martin issued a notice of determination which sustained the issuance of the notice of intent to levy and concluded that petitioner did not qualify for an installment agreement. In the notice of determination SO Martin verified that she had no prior involvement with petitioner‘s case, verified that all legal and procedural requirements had been met, and balanced the need for efficient collection with petitioner‘s legitimate concerns that the collection action be no more intrusive than necessary.
Discussion
When the Commissioner pursues collection by lien or levy, he must notify the affected taxpayer in writing of his or her right to a hearing with an impartial Appeals officer. See
As a preliminary matter we note that although the petition in this case is entitled “Petition for Redetermination of Lien or Levy Action under Code Section 6320 and/or 6330(d)“, our jurisdiction is limited to the review of the levy action pursuant to
As part of the CDP hearing, Appeals must take into consideration: (1) verification that the requirements of applicable law and administrative procedure have been met; (2) relevant issues raised by the taxpayer concerning the collection action; and (3) whether the proposed collection action balances the need for the efficient collection of tax with the taxpayer‘s legitimate concern that the collection action be no more intrusive than necessary.
A taxpayer is precluded from challenging the existence or amount of the underlying tax liability unless the individual did not receive a notice of deficiency for the tax liability or was not otherwise provided with an opportunity to dispute the tax liability.
Where the validity of the underlying tax liability is not at issue, we review Appeals’ determinations for abuse of discretion. Sego v. Commissioner, 114 T.C. at 610; Goza v. Commissioner, 114 T.C. at 182. Abuse of discretion exists where the Appeals officer‘s determinations are arbitrary, capricious, or without sound basis in fact or law. Giamelli v. Commissioner, 129 T.C. 107, 111 (2007). The Court of Appeals for the Ninth Circuit has held that judicial review of nonliability issues under
“Section 6159 authorizes the Commissioner to enter into written agreements allowing taxpayers to pay tax in installment payments if he deems that the ‘agreement will facilitate full or partial collection of such liability.‘” Thompson v. Commissioner, 140 T.C. 173, 179 (2013) (quoting
Petitioner argues that SO Martin abused her discretion when she rejected his proposed installment agreement. SO Martin rejected petitioner‘s proposed installment agreement for three reasons: (1) petitioner was not in full compliance with the tax laws; (2) petitioner refused to liquidate his assets to effect a partial payment; and (3) petitioner‘s proposed monthly payment did not reflect his ability to pay. We address each of these reasons in turn.
Petitioner argues that SO Martin abused her discretion and erred as a matter of law by requiring him to be current with his estimated tax payments before she would accept his proposed installment agreement. We disagree.
We have consistently held that an Appeals officer does not abuse his discretion in denying a taxpayer‘s request for an installment agreement when the taxpayer is not in compliance with his current tax obligations as of the date of the CDP hearing. See, e.g., Starkman v. Commissioner, T.C. Memo. 2012-236 (sustaining rejection where taxpayer failed to timely file his tax return or make estimated tax payments); Pavlica v. Commissioner, T.C. Memo. 2007-163 (sustaining rejection where the taxpayer had a history of tax noncompliance and failed to timely file his tax return); see also James G. Hood, D.D.S., M.S., P.S. v. United States, 329 Fed. Appx. 88 (9th Cir. 2008) (holding that the Appeals Officer did not abuse his discretion in rejecting the taxpayer‘s proposed installment agreement where the taxpayer was not current on its employment taxes).
Petitioner‘s argument is nearly identical to the taxpayer‘s argument in Lipson. In Lipson v. Commissioner, at *8, the taxpayer argued that while the
Similarly, we conclude that although SO Martin could accept an installment agreement that included petitioner‘s current estimated tax liabilities, she acted within her discretion in declining to do so. Moreover, contrary to petitioner‘s
Petitioner‘s reliance on Lofgren Trucking Serv., Inc. v. United States, 508 F. Supp. 2d 734, 739 (D. Minn. 2007), is misplaced. In Lofgren the Appeals officer erroneously determined that 2006 first quarter employment taxes were “new” tax debts incurred while a proposal was pending, when in fact, the taxpayer had submitted its payment plan during the second quarter of 2006 and had paid its 2006 second quarter employment taxes. Id. at 737-739. Moreover, in Lofgren the Appeals officer summarily denied the taxpayer‘s requested payment plan solely upon the basis of his mistaken belief that accepting the plan was impossible under the Code and the regulations because of the debt incurred for the first quarter of 2006. Lofgren is therefore distinguishable because petitioner had not paid his 2012 estimated taxes as of May 2, 2012, the date of the CDP hearing, and because SO Martin gave actual and fair consideration to petitioner‘s proposed installment agreement, rejecting it for a number of reasons.
B. Liquidation of Assets
SO Martin further rejected petitioner‘s proposed installment agreement because he refused to liquidate his retirement account and his life insurance
We have routinely held that an Appeals officer does not abuse his discretion when he rejects an installment agreement because a taxpayer refuses to liquidate assets to satisfy his tax liabilities. In Bibby v. Commissioner, T.C. Memo. 2013-281, we held that an Appeals officer did not abuse his discretion in rejecting an installment agreement where the Appeals officer made clear that an installment agreement depended upon the liquidation of three real properties and the taxpayer would not agree to that condition precedent. In O‘Donnell v. Commissioner, T.C. Memo. 2013-247, we held that an Appeals officer did not abuse his discretion in rejecting an installment agreement where the taxpayer failed to fully disclose his liquid assets and did not offer to pay his liabilities with those assets. See also Lipson v. Commissioner, at *9 (holding that the settlement officer acted within her discretion in rejecting an installment agreement where the taxpayer owned investments totaling $406,805 and noting that taxpayers do not generally qualify
In McCarthy v. Commissioner, T.C. Memo. 2013-214, at *4, the Appeals officer required the taxpayer to borrow against or liquidate his significant equity in various assets before she would consider his proposed installment agreement. Although the taxpayer did make attempts to borrow against his assets and had one loan request approved, the Appeals officer ultimately rejected his proposed installment agreement when he failed to borrow against or liquidate his assets. On review we held that the Appeals officer was not required to set a specific date by which the taxpayer must liquidate his assets and that she acted within her discretion in rejecting his proposed installment agreement. Id.
Petitioner argues that SO Martin abused her discretion because the pendency of an appeal of a decision imposing liability constitutes “special circumstances” warranting an exception to the general rule that assets must be liquidated to qualify for an installment agreement. We disagree.
Petitioner argues, for the first time on brief, that “special circumstances” existed because of the unique nature of the assets that SO Martin asked him to liquidate. According to petitioner his
We may not consider issues or arguments that a taxpayer does not raise as part of his CDP hearing. Giamelli v. Commissioner, 129 T.C. at 112-113 (“The statute [section 6330] contemplates consideration of issues ‘raised’ by the taxpayer at the hearing. Thus, if an issue is never raised at the hearing, it cannot be a part of the Appeals officer‘s determination.“);
Finally, petitioner argues that SO Martin abused her discretion by requiring him to liquidate his life insurance policies when respondent would “almost certainly” not receive any proceeds from that liquidation because they were “encumbered by First Interstate Bank as collateral at all relevant times“. Petitioner‘s argument is at best confused and at worst disingenuous. SO Martin asked petitioner to liquidate the life insurance policies disclosed in his Form 433-A with cash value of $52,437 and policy numbers ending in 1286 and 2912. The life insurance policy assigned to First Interstate Bank had a policy number ending in
C. Reflection of Ability To Pay
Finally, SO Martin rejected petitioner‘s proposed installment plan of $12,500 a month because it did not reflect his ability to pay, which she determined to be approximately $29,000 a month.9
In reviewing for abuse of discretion the Court does not recalculate a taxpayer‘s ability to pay nor substitute its judgment for that of the settlement officer. O‘Donnell v. Commissioner, at *15.
Petitioner argues that SO Martin abused her discretion by not negotiating the amount of the monthly payment. Petitioner continues: “Boulware never had to make the difficult determination of what he could afford to pay on a monthly basis“; and he asserts that the liquidation requirement “obviated Boulware‘s need to determine what he was able to pay in an installment agreement“. We disagree. During the CDP hearing on May 2, 2012, SO Martin informed petitioner that, according to her calculations, he had the ability to pay approximately $29,000 per month. Yet after this hearing petitioner offered to pay a mere $12,500 a month and informed SO Martin that he intended to pay $13,673 a month towards his officer
II. Face-to-Face Meeting
Petitioner argues that he did not receive a proper CDP hearing because SO Martin denied him a face-to-face hearing.
CDP hearings are* * * informal in nature and do not require the Appeals officer or employee and the taxpayer, or the taxpayer‘s representative, to hold a face-to-face meeting. A CDP hearing may, but is not required to, consist of a face-to-face meeting, one or more written or oral communications between an Appeals officer or employee and the taxpayer or the taxpayer‘s representative, or some combination thereof. ***
* * * * * * *
Except as provided * * * [below], a taxpayer who presents in the CDP hearing request relevant, non-frivolous reasons for disagreement with the proposed levy will ordinarily be offered an opportunity for a face-to-face conference at the Appeals office closest to taxpayer‘s residence. ***
* * * * * * *
* * * A face-to-face CDP conference concerning a collection alternative, such as an installment agreement or an offer to compromise liability, will not be granted unless other taxpayers would be eligible for the alternative in similar circumstances. * * * Appeals in its discretion, however, may grant a face-to-face conference if Appeals determines that a face-to-face conference is appropriate to explain to the taxpayer the requirements for becoming eligible for a collection alternative. * * * For purposes of determining whether a face-to-face conference will be granted, the determination of a taxpayer‘s eligibility for a collection alternative is made without regard to the taxpayer‘s ability to pay the unpaid tax. * * *
Petitioner requested a face-to-face CDP conference to discuss a collection alternative--i.e., his proposed installment agreement. At the time petitioner made his request he was not eligible for an installment agreement because he was not in compliance with the tax laws and he refused to liquidate his assets.10
Moreover, we have consistently held that a taxpayer is not automatically entitled to a face-to-face CDP hearing. See, e.g., Katz v. Commissioner, 115 T.C. 329 (2000) (holding that a combination of telephone calls and letters constituted a
Finally, petitioner alleged in his petition a number of errors that he has failed to argue on brief. Accordingly, we consider these issues to be conceded. See Mendes v. Commissioner, 121 T.C. 308, 312-313 (2003) (holding that arguments not addressed in brief may be considered abandoned); Davis v. Commissioner, 119 T.C. 1 n.1 (2002).
Any arguments not discussed in this opinion are irrelevant, moot, or lacking in merit.
Decision will be entered for respondent.