Jennifer Zuch v. Commissioner of Internal RevenueJennifer Zuch v. Commissioner of Internal Revenue
Frank Agostino
Agostino & Associates
14 Washington Place
Hackensack, NJ 07601
Jeffrey M. Dirmann [ARGUED]
4th Floor, Suite 17
55 Madison Avenue
Morristown, NJ 07960
Counsel for Appellant
Julie C. Avetta [ARGUED]
Jennifer M. Rubin
United States Department of Justice
Tax Division
950 Pennsylvania Avenue NW
P.O. Box 502
Washington, DC 20044
Counsel for Appellee
Legal Services Center of Harvard Law School
122 Boylston Street
Jamaica Plain, MA 02130
Court-Appointed Amicus Curiae*
_______________
* We requested briefing on certain issues from Audrey Patten, Esquire, of the Harvard Law Tax Litigation Clinic, whom we appointed as Amicus Curiae. We are grateful for the thoughtful insights provided by Ms. Patten and the Clinic.
OPINION OF THE COURT1
JORDAN, Circuit Judge.
When Congress grants taxpayers the right to challenge what the Internal Revenue Service says is owed to the government, Congress‘s will prevails. The IRS cannot say that such a right exists only under the circumstances it prescribes. That ought to go without saying, but this case requires us to say it.
The IRS sent Jennifer Zuch a notice informing her that it intended to levy on her property to collect unpaid tax. She challenged the levy, arguing that she had prepaid the tax. The IRS Independent Office of Appeals (the “IRS Office of Appeals“) sustained the levy, and Zuch petitioned the United States Tax Court for review of that decision. While the issue was being litigated in that Court over several years, the IRS withheld tax refunds owed to Zuch and applied them to what it said was her unpaid balance, satisfying it in full. When, according to the IRS‘s accounting, there was no more tax to be paid, the IRS filed a motion to dismiss the Tax Court proceeding for mootness, and the Court granted the motion.
Because Zuch‘s claim is not moot, we will vacate the dismissal and remand this matter to the Tax Court to determine whether Zuch‘s petition is meritorious.
I. BACKGROUND
A. Overview of Tax Court Proceedings
Some understanding of tax procedure is essential to the consideration of this case, so we begin with a brief summary of the two basic pathways by which taxpayers can dispute what they owe the government before the IRS collects: deficiency proceedings and collection due process hearings.2 After addressing a key question related to these pathways—the distinction between unpaid tax and tax liability—we turn to the factual and procedural background that led to this appeal.
1. Deficiency Proceedings
When the IRS decides that a taxpayer owes more than the amount reported on her tax return, it mails the taxpayer a “notice of ... deficiency.”3
2. Collection Due Process Proceedings
If a taxpayer does not pay the amount the IRS says is due, the IRS can levy—that is, seize and sell—a taxpayer‘s property to satisfy the tax liability.
may also raise at the [CDP] hearing challenges to the existence or amount of [his or her] underlying tax liability for any tax period if [he or she] did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.
This scheme makes good sense in light of potential due process concerns. “[S]ome form of hearing is required before an individual is finally deprived of a property interest[,]” Mathews v. Eldridge, 424 U.S. 319, 333 (1976), and a taxpayer who cannot challenge a levy before seizure and sale may wrongfully lose property without notice or the opportunity to be heard, see
So, to recap: If the taxpayer could have commenced a deficiency proceeding before the CDP hearing, the hearing provides a forum to challenge the unpaid tax and proposed levy only. But if the taxpayer had no opportunity to commence a deficiency proceeding, the CDP hearing provides a forum to challenge the unpaid tax, the proposed levy, and the underlying tax liability.
Once the IRS Office of Appeals makes a determination on the taxpayer‘s challenges, the taxpayer has thirty days to petition the Tax Court to review any issues that were properly raised at the CDP hearing.
3. Unpaid Tax Versus Tax Liability
Section 6330(c)(2)(B) of the Internal Revenue Code raises an important question: What is the difference between unpaid tax and tax liability? There must be some distinction, or else the language in
There is indeed a distinction: West‘s Tax Law Dictionary defines “tax liability” as the “[t]otal amount of tax owed to the I.R.S. after the allowance of any proper credits.” Tax Liability, West‘s Tax Law Dictionary § T830 (emphasis added). And it defines credit as “an allowance against the tax itself [including] [i]ncome tax withheld on wages, prepaid estimated taxes, [etc.]” Credit, West‘s Tax Law Dictionary § C4530 (emphasis added). Tax liability is therefore the net amount owed to the IRS: If you owe $20 to the IRS and have prepaid that $20, your tax liability—at least on these simple facts—is $0. Understanding “tax liability” in this way accords with the plain meaning of “liability.” To say, “I have no liability” is to say, in effect, “I owe nothing.” A “challenge” to liability under
In contrast, “issue[s] relating to the unpaid tax” under
Strictly speaking, then, unpaid tax means something different than tax liability. For example, assuming that the IRS has assessed $20 in taxes, your unpaid tax is just that: the $20 the IRS says you owe. But further proceedings can change that number. If a deficiency proceeding or a challenge under
B. Factual Background6
Zuch and Patrick Gennardo7 were married from 1993 to 2014. On September 12, 2012, they filed separate, untimely tax returns for the 2010 tax year, each electing
All of this had been preceded in 2010 and 2011 by two prepayments of the couple‘s estimated tax liability for 2010. More specifically, in June of 2010, the couple submitted an estimated tax payment of $20,000 to the IRS for the 2010 tax year.11 Gennardo then, in January of 2011, sent an estimated tax payment of $30,000 for the 2010 tax year.12 When they made the payments, Zuch and Gennardo did not specify how they wanted to have the IRS allocate those payments to their respective tax liabilities, and Zuch‘s late-filed 2010 tax return did not mention the estimated payments. After processing Gennardo‘s return, the IRS sent him a notice, in October of 2012, that showed it had applied the full $50,000 in estimated payments to offset the tax due on his individual 2010 return.
Later, in November of 2012, Zuch filed an amended 2010 tax return to report additional income of $71,000 from a retirement account distribution, causing additional tax due of $27,682. On that return, she claimed the benefit of the same $50,000 in estimated payments and requested a refund of $21,918. The IRS assessed Zuch the additional tax she reported, but it did not refund or otherwise credit her for the $50,000 in estimated payments that she claimed. It also allegedly sent her a notice and demand for payment of her additional tax due, but she disputes ever having been sent such a notice.13
C. Procedural Background
1. Zuch‘s CDP Hearing
On August 31, 2013, the IRS sent Zuch a “Final Notice of Intent to Levy and Notice of your Right to a Hearing.” (App. at 563.) That notice informed her that the IRS intended to levy on her property for failing to pay her remaining 2010 tax liability of approximately $36,000 and that she had thirty days to appeal the levy by requesting a CDP hearing with the IRS Office of Appeals. Zuch timely requested a CDP hearing, and because she did not receive a notice of deficiency or “otherwise have an opportunity to dispute [her] tax liability,” she exercised her right to challenge “the existence or amount of the underlying tax liability” in the CDP proceedings.
The CDP hearing was held via telephone on July 29, 2014. During the hearing, an IRS officer told Zuch‘s counsel that he did not believe that the IRS could credit any of the estimated payments to Zuch‘s liability because they had already been credited to Gennardo‘s account, which had been subject to an offer-in-compromise. On September 25, 2014, the IRS Office of Appeals sent Zuch a Notice of Determination sustaining the IRS‘s proposed levy and stating it was “not in a position” to move credits from Gennardo‘s account to hers. (App. at 294.) That notice also informed Zuch that she had thirty days to dispute the IRS‘s determination by filing a petition with the Tax Court.
2. Zuch‘s Tax Court Proceedings
Zuch did petition the Tax Court for relief. She asked the Court to conduct a de novo review of her underlying tax liability and conclude that the $50,000 in estimated tax payments should be applied to her
The Tax Court then granted the IRS‘s unopposed motion to remand the case to the IRS Office of Appeals. In June 2017, the IRS issued a Supplemental Notice of Determination, confirming its prior determination to sustain the levy and stating that it received no new information that would compel it to change its prior decision. The case returned to the Tax Court and was initially set for trial. Instead, the parties agreed to forgo trial and proceed on a stipulated factual record.18
3. Credit Setoffs
Throughout the several years Zuch was arguing with the IRS about her 2010 tax liability, including in the CDP hearing and in the Tax Court, the IRS was taking tax refunds that Zuch was owed in later tax years and applying them to what it calculated to be her 2010 tax liability. It did this six times once each in 2013, 2014, 2015, and 2019, and twice in 2016.19 On April 15, 2019, the IRS used a refund to set off the remainder of Zuch‘s 2010 unpaid tax, reducing the balance due to $0.
With no remaining unpaid tax on which to execute a levy, the IRS moved to dismiss the Tax Court proceeding as moot. Zuch opposed the motion, but the Tax Court granted it and dismissed the petition. In a short order, the Court held that the case was moot. Without acknowledging
Zuch timely appealed the Tax Court‘s order.
II. DISCUSSION20
The dispute comes down to this: whether, in the midst of litigation over a contested
A. The Tax Court Originally Had Jurisdiction to Hear Zuch‘s Claim.
The Tax Court is a tribunal of limited jurisdiction. Sunoco, 663 F.3d at 187. Being organized under Article I of the Constitution, it possesses only the power “expressly conferred by Congress.” Id. Congress has granted the Tax Court jurisdiction to review decisions made by the IRS Office of Appeals in CDP hearings.
Zuch fell into the latter category, disputing her 2010 tax liability at the CDP hearing by arguing that the $50,000 provided by her and Gennardo as estimated tax payments should have been applied to satisfy her tax liability instead of Gennardo‘s. Because Zuch had neither received a notice of deficiency nor had an opportunity to contest the allocation of the tax payments prior to her CDP hearing,21 the IRS was required to consider her challenge. The IRS did so, finding that the $50,000 could not be credited to Zuch and sustaining the levy. Accordingly, the Tax Court had jurisdiction to review that determination, including whether the estimated payments were allocated correctly.22
B. The Tax Court Applies Article III Case or Controversy Principles to Determine Mootness.
“Article III of the Constitution restricts the power of federal courts to ‘Cases’ and ‘Controversies.‘” Chafin v. Chafin, 568 U.S. 165, 171 (2013). As an Article I tribunal, however, the Tax Court “is not fully constrained by Article III‘s case or controversy limitation.” Baranowicz v. Comm‘r, 432 F.3d 972, 975 (9th Cir. 2005). Nevertheless, the Tax Court wisely applies that constraint to itself, Battat v. Comm‘r, 148 T.C. 32, 46 (2017) (“The case or controversy requirement under Article III presumptively applies in the Tax Court.“), and, of course, is free to do so for prudential reasons, cf. Zevalkink v. Brown, 102 F.3d 1236, 1243 (Fed. Cir. 1996) (“As a court established under Article I of the U.S. Constitution, the Court of Veterans Appeals ... has decided, based on the same prudential considerations behind the ‘case or controversy’ requirement, ... that it would refrain from deciding cases that do
Article III permits federal courts to “entertain actions only if [those actions] present live disputes, ones in which both sides have a personal stake.” Hartnett v. Pa. State Educ. Ass‘n, 963 F.3d 301, 305 (3d Cir. 2020). That “case or controversy” requirement remains “through all stages of federal judicial proceedings, trial and appellate.” Chafin, 568 U.S. at 172 (internal quotation marks omitted). Thus, a case becomes moot, and a federal court is deprived of jurisdiction to hear that case, when there is no longer a live case or controversy between the litigants. Id. “As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Id. (internal quotation marks omitted). Therefore, a case “becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int‘l Union, Loc. 1000, 567 U.S. 298, 307 (2012) (cleaned up). A defendant faces a “heavy burden” when trying to persuade a court that there is no longer a live controversy. Hartnett, 963 F.3d at 305-06 (internal quotation marks omitted).
C. Zuch‘s Claim Is Not Moot.
The parties dispute whether Zuch‘s claim falls under
1. The Characterization of Zuch‘s Claim.
In the Notice of Determination that Zuch received, the IRS listed her challenge to the allocation of the estimated payments under the heading “Challenges to the Liability.” (App. at 298.) Now, however, it argues that a challenge to the allocation of estimated tax payments is not a challenge to the “underlying liability,” which involves
This is, to be frank, nothing but self-serving word play. The IRS says an “underlying tax liability” must be understood by looking only at the “total tax” line on a return, while turning a blind eye to estimated tax payments listed on the very same return. But Zuch‘s “tax liability” did not exist in a vacuum,
separate from payments she made on that liability.24 ShePerhaps because its meaning is clear, the term “underlying tax liability” is not defined by statute, nor is there any reference to its meaning in the relevant legislative history. Montgomery v. Comm‘r, 122 T.C. 1, 7 (2004). Yet, the Tax Court has been inconsistent in treating challenges to the IRS‘s application of payments and credits toward tax as, in some instances, falling under
The inconsistency is puzzling since it seems obvious that a taxpayer‘s “challenge[] to the existence or amount of the underlying tax liability” involves whether and how much the taxpayer has paid on that liability.
Nonetheless, even if the IRS is correct that Zuch‘s claim is properly characterized as a challenge to unpaid tax under
2. Zuch‘s Claim Is Not Moot Because the IRS‘s Setoffs Were Invalid.
Because, as explained below, the Tax Court retains jurisdiction to review setoffs, and the IRS cannot satisfy a tax dispute by means of unlawful credit setoffs, Zuch‘s tax obligation was not properly set off, and she can challenge the IRS‘s application of the estimated payments.25
a) The Tax Court has jurisdiction to review setoffs.
Under
The IRS contends that, in
The IRS also asserts that Congress did not affirmatively grant the Tax Court the power to review setoffs in a CDP case. It may be that Congress has not explicitly granted the Tax Court such power, but an implicit grant allows the Court to review setoffs in any event.
As the Tax Court has recognized, “[s]ection 6402(a) contains a statutory counterpart” to the common law right of offset. Boyd v. Comm‘r, 124 T.C. 296, 300 (2005). And the common law of setoffs “calls for judicial review of the merits of the claim being invoked as an offset of a government debt.” Agility Pub. Warehousing Co. K.S.C.P. v. United States, 969 F.3d 1355, 1365 (Fed. Cir. 2020). For example, the Federal Circuit has “emphasized that the Debt Collection Act [of 1982, Pub. L. No. 97-365, 96 Stat. 1749,27] was intended to supplement, and not displace, the government‘s pre-existing offset rights under the common law.” McCall Stock Farms, Inc. v. United States, 14 F.3d 1562, 1566 (Fed. Cir. 1993). “Congress understood that to trigger the [Debt Collection Act‘s] offset provision, a pre-existing, valid debt must first be owed to the United States.” Agility, 969 F.3d at 1364. Accordingly, the court reasoned that the Act “cannot be reasonably interpreted as shielding from judicial review the United States’ determination that a pre-[existing] debt is owed.” Id.
Because
b) The IRS setoffs violated setoff common law and Article III mootness principles and are thus invalid.
The “right of setoff (also called ‘offset‘) allows [parties] that owe each other money to apply their mutual debts against each other, thereby avoiding ‘the absurdity of making A pay B when B owes A.‘” Citizens Bank of Md. v. Strumpf, 516 U.S. 16, 18 (1995) (quoting Studley v. Boylston Nat‘l Bank of Bos., 229 U.S. 523, 528 (1913)). The right to apply mutual debts to offset each other does not apply when the debts are disputed. Accordingly, a creditor cannot set off a disputed debt with an undisputed one. That is a matter of black letter law. Setoff, Black‘s Law Dictionary (11th ed. 2019) (“Set off is a mode of defence by which the defendant acknowledges the justice of the plaintiff‘s demand, but sets up a demand of his own against the plaintiff, to counter-balance it either in whole or in part.” (emphasis added) (quoting Oliver L. Barbour, A Treatise on the Law of Set Off 3 (1841))); 15 Williston on Contracts § 44:34 (West 2023) (explaining that “mutual debts do not extinguish one another ... either automatically or by an election or other action by one party; rather, the agreement of the parties or judicial action is required“). As the Seventh Circuit has noted:
Courts regularly require the payment of undisputed debts while the parties litigate their genuine disputes. This reflects the limits of the common law right of set-off between debts. Setoffs are permitted only when the debts are “mutual“, and debts arising at different times out of different circumstances are not mutual.
Soo Line R.R. Co. v. Escanaba & Lake Superior R.R. Co., 840 F.2d 546, 551 (7th Cir. 1988) (internal citation omitted) (Easterbrook, J.).
To the extent that the IRS‘s argument is that
A “longstanding [rule] is ... that statutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident.”28 United States v. Texas, 507 U.S. 529, 534 (1993) (cleaned up). And to “abrogate a common-law principle, the statute must speak directly to the question addressed by the common law.” Id. (internal quotation marks omitted).
Although
Beyond violating the common law and the clear legislative intent to preserve taxpayer rights in CDP hearings, the setoffs here violate Article III mootness principles. “One scenario in which we are reluctant to declare a case moot is when the defendant argues mootness because of some action it took unilaterally after the litigation began.” Hartnett, 963 F.3d at 306; see also Vigon v. Comm‘r, 149 T.C. 97, 104 n.3 (2017) (the IRS “may not unilaterally oust the Tax Court from jurisdiction – neither in a deficiency case nor in a CDP case” (internal quotation marks omitted)). That is what we are faced with here. It is well established that “a defendant‘s voluntary cessation of a challenged practice does not deprive [us] of [our] power to determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (internal quotation marks omitted) (emphasis added). It is no stretch to likewise conclude that, as a general matter, and when an avenue of relief remains, a defendant cannot unilaterally complete a challenged practice to moot a case either.
In short, because the IRS‘s setoffs were invalid and without legal effect, Zuch‘s claims are not moot, although Zuch‘s money is, at least for the time being, in the government‘s pocket.
3. Zuch‘s Claim Is Also Live Under § 6330(c)(2)(B) Because the Tax Court Retained Jurisdiction to Review Her Liability.
If we view Zuch‘s claim as a challenge to liability under
a) Nothing in the plain text of § 6330 suggests a taxpayer‘s challenge to tax liability under § 6330(c)(2)(B) can be rendered moot by the unilateral action of the IRS.
We part ways here with the Fourth and D.C. Circuits. The Fourth Circuit has held that the phrase “underlying tax liability” in
While it is true that the “plainness or ambiguity of statutory language is determined by reference to ... the specific context in which that language is used, and the broader context of the statute as a whole[,]” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997), we do not read “underlying tax liability” so narrowly.
As the Tax Court has explained, the broader purpose of
After the IRS Office of Appeals considers the taxpayer‘s challenges at the CDP hearing and issues its determinations as to the levy and the taxpayer‘s liability, the Tax Court obtains jurisdiction to review those determinations.
In short, there is nothing in the plain text of
b) Greene-Thapedi‘s reasoning was faulty.
Nevertheless, the Tax Court here held otherwise. It dismissed Zuch‘s case as moot “[b]ecause there [was] no unpaid liability for the determination year upon which a levy could be based, and [the IRS was] no longer pursuing the proposed collection action[.]” (App. at 7-8.) That dismissal followed the reasoning of an earlier case called Greene-Thapedi v. Commissioner, 126 T.C. 1 (2006), with facts very similar to the case before us now. There, the IRS notified a taxpayer that it intended to levy on her property to collect a disputed tax liability. Id. at 2-3. The taxpayer then challenged the tax liability in a CDP hearing. Id. at 3. The IRS Office of Appeals sustained the levy, and the taxpayer petitioned the Tax Court for review. Id. After she filed her petition, the IRS used the taxpayer‘s overpayment in a later year to fully satisfy the disputed tax liability. Id. at 4. The Tax Court then dismissed the taxpayer‘s proceeding as moot, holding that “whatever right petitioner may have to challenge the existence and amount of her underlying tax liability in this proceeding arises only in connection with her challenge to the proposed collection action.” Id. at 8. And if “the proposed levy is moot,” then the taxpayer “has no independent
To arrive at that conclusion, the Greene-Thapedi Court relied on two inapposite and non-precedential Tax Court cases, Chocallo v. Commissioner, T.C.M. (RIA) 2004-152, and Gerakios v. Commissioner, T.C.M. (RIA) 2004-203.35 See id. at 7-8. In both of those cases, the taxpayer was not asserting any ongoing challenge to the tax liability underlying the CDP proceeding when the Tax Court declared the matter moot. In Chocallo, the IRS discovered during the CDP hearing that it had incorrectly assessed the taxpayer‘s liability and so it refunded the amount already collected. Chocallo at 2. At that point, the IRS moved to dismiss the case as moot. Id. The taxpayer then filed a “Supplemental Motion for Sanctions, Contempt and For Other Relief[,]” requesting that the IRS employees who handled her case be criminally prosecuted and claiming damages for alleged wrongs committed by IRS employees. Id. Thus, the taxpayer was seeking damages; she was no longer contesting the underlying tax liability that gave rise to the suit. In Gerakios, the taxpayer voluntarily paid his tax liabilities after a CDP hearing. Gerakios at 1. He “did not dispute his underlying liabilities.” Id. at 1 n.1. He paid the tax because the tax lien was hindering his ability to refinance his home. Id. at 1. He sought review in the Tax Court claiming
only that IRS “employees mistreated him [and] violated his civil rights, and that his credit rating was adversely affected by the filing of the lien.” Id. Since neither case involved a taxpayer who was then challenging an underlying tax liability, as is the case here and was in Greene-Thapedi, the Greene-Thapedi court‘s reliance on Chocallo and Gerakios was misplaced.
The Tax Court‘s own precedent since Greene-Thapedi suggests that the case was wrongly decided. In Vigon v. Commissioner, decided in 2017, the Tax Court held that the IRS cannot unilaterally moot a case by withdrawing its proposed collection activity if the Tax Court has already “obtained jurisdiction of a liability challenge when the petition was filed.” 149 T.C. at 107. That‘s because the “liability issue may remain even after the collection issues have been resolved or become moot.” Id. at 105. To be sure, a footnote in Vigon distinguished it from Greene-Thapedi because Greene-Thapedi “involved a liability that had been satisfied” and “not merely abated,” as in Vigon. Id. at 105 n.4. But there is nothing in
Indeed, even the IRS used to recognize that. In a notice to its attorneys in 2003, it explained that “[a] motion to dismiss for mootness is inappropriate if petitioner is disputing the existence or amount of the liability .... Even if the liability has been paid, petitioner may still dispute the liability[.]” I.R.S. Notice CC-2003-016 (May 29, 2003), 2003 WL 24016801 (emphasis added).36 That is the correct view, and the IRS
c) The Tax Court need not have repayment or refund jurisdiction for there to be a live dispute.
In Greene-Thapedi, the Tax Court said that, once a levy was removed and the tax was paid, it could not provide any other relief to the taxpayer because “section 6330 does not expressly give [the] Court jurisdiction to determine an overpayment or to order a refund or credit of taxes paid.” 126 T.C. at 8. It reasoned that full payment rendered any conclusion it might make as to liability “at best, ... an advisory opinion.” Id. at 13.
A leading tax-procedure treatise, noting that “[m]any scholars and practitioners believe that Greene-Thapedi reached an incorrect conclusion[,]” explains how the Tax Court got it wrong:
[A] [t]axpayer‘s full payment of the previously unpaid tax liability should not render the entire case “moot” if the Tax Court otherwise has jurisdiction over the underlying liability. Full payment does not necessarily resolve the dispute as the Tax Court held. The question of whether a dispute remains is separate from the question of whether the Tax Court can grant a refund. Even if granting a refund is barred, the Tax Court could still determine the correct liability as part of its CDP determination.
Michael I. Saltzman & Leslie Book, IRS Practice & Procedure ¶ 14B.16[4][a] (West 2023).
We agree. Notwithstanding any overpayment or refund jurisdiction, a live dispute as to underlying liability does not become moot based upon payment of the “unpaid” tax.
Despite all of the foregoing, the IRS argues that a Tax Court determination of the proper allocation of the tax payments in a CDP hearing would be an improper declaratory judgment. (Supp. Br. at 15 (“Nothing in the Code or Section 6330 authorizes the Tax Court to issue advisory opinions or declaratory judgments in CDP cases.“).) The
The Tax Anti-Injunction Act generally provides that there can be “no suit for the purpose of restraining the assessment or collection of any tax[.]”
Thus, when a court has the power to enjoin a levy under the Tax Anti-Injunction Act, it also has the power to declare the rights of the parties in that proceeding without violating the Declaratory Judgment Act. As the D.C. Circuit has explained,
a functional concern exists with construing the [Declaratory Judgment Act]‘s exception to bar relief otherwise allowed under the [Tax Anti-Injunction Act]. The court would have jurisdiction to enjoin the parties appearing before it, but not to declare their rights. This defies common sense, however, “since an injunction of a tax and a judicial declaration that a tax is illegal have the same prohibitory effect on the federal government‘s ability to assess and collect taxes.”
Id. at 730 (quoting Wyoming Trucking Ass‘n, Inc. v. Bentsen, 82 F.3d 930, 933 (10th Cir. 1996)); see also Tomlinson v. Smith, 128 F.2d 808, 811 (7th Cir. 1942) (“[T]he jurisdiction of the court to issue a restraining order is ... determinative of its jurisdiction to declare the rights of the parties relative thereto. It is unreasonable to think that a court with authority to issue a restraining order is without power
Because the Declaratory Judgment Act does not bar the Tax Court from declaring the rights to estimated payments at issue in a CDP hearing, there is a live case and controversy, and a Tax Court determination of Zuch‘s tax liability would not be an improper declaratory judgment.
e) The IRS has not met its burden to show that no relief would be available to Zuch if the Tax Court declared she had a right to the estimated payments.
To show mootness, the IRS must prove that Zuch could have no relief whatsoever if the Tax Court were to declare that she had a right to the estimated payments. Given what we have already said here, to carry its heavy burden, the IRS must prove that a declaration by the Tax Court of Zuch‘s rights in her CDP case would not have preclusive effect on a future refund claim. In a supplemental brief, the IRS has taken the position that such a determination would not have any preclusive effect, but it cites no relevant authority to support that proposition. And, indeed, the IRS Office of Chief Counsel has at least twice issued notices indicating the opposite. See I.R.S. Notice CC-2006-005 (Nov. 21, 2005), 2005 WL 3272051 (“A judicial determination in a CDP case of a taxpayer‘s underlying tax liability for a taxable year (which may be less than the taxpayer‘s payments for that year) may be subject to estoppel principles in a subsequent refund action[.]“); I.R.S. Notice CC-2009-010 (Feb. 13, 2009), 2009 WL 497736 (“A judicial determination of the amount of the underlying tax liability in a CDP case may, however, estop both parties from contesting the amount of that same liability in a subsequent refund action[.]“).41 Accordingly, the IRS has not met its heavy burden to show that Zuch would have no relief whatsoever if the Tax Court were to declare she has a right to the estimated tax payments. And, of course, an agency of the United States, having received a court
III. CONCLUSION
For the foregoing reasons, we will vacate the Tax Court‘s order of dismissal and remand for that tribunal to determine whether Zuch is entitled to receive credit for any amount of the estimated tax payments at issue.
Notes
Greene-Thapedi v. Comm‘r, 126 T.C. 1, 11 n.19 (2006).We do not mean to suggest that this Court is foreclosed from considering whether the taxpayer has paid more than was owed, where such a determination is necessary for a correct and complete determination of whether the proposed collection action should proceed. Conceivably, there could be a collection action review proceeding where the proposed collection action is not moot and where pursuant to
sec. 6330(c)(2)(B) , the taxpayer is entitled to challenge “the existence or amount of the underlying tax liability.” In such a case, the validity of the proposed collection action might depend upon whether the taxpayer has any unpaid balance, which might implicate the question of whether the taxpayer has paid more than was owed.
The IRS updated its position with another notice in 2005, stating, “[a] motion to dismiss on ground of mootness ... should be filed if the tax liability has been paid fully and the taxpayer raises no other relevant issues.” I.R.S. Notice CC-2005-008 (May 19, 2005), 2005 WL 1259554. Zuch‘s claim that the estimated tax payments were applied incorrectly is certainly a relevant issue to whether the Tax Court CDP proceeding should remain open.