T.C. Memo. 2019-4



                         UNITED STATES TAX COURT



                   JOHN F. CAMPBELL, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 5644-12L.                         Filed February 4, 2019.



      George W. Connelly, Jr., for petitioner.

      Susan Kathy Greene, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      KERRIGAN, Judge: This collection due process (CDP) case commenced in

response to a Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 (notice of determination) upholding a proposed levy

collection action and a notice of Federal tax lien (NFTL) regarding petitioner’s
                                            -2-

[*2] unpaid tax liability for tax year 2001. The Internal Revenue Service (IRS or

respondent) issued two supplemental notices of determination during the course of

petitioner’s CDP proceedings, which also sustained the proposed levy collection

action and the NFTL. The issue for our consideration is whether respondent’s

determination to sustain the proposed levy action regarding the unpaid tax liability

was an abuse of discretion.1

      Unless otherwise indicated, all section references are to the Internal

Revenue Code in effect at all relevant times. We round all monetary amounts to

the nearest dollar.

                                  FINDINGS OF FACT

      Some of the facts have been stipulated and are so found. The stipulation of

facts and the attached exhibits are incorporated herein by this reference. Petitioner

resided in Connecticut when he timely filed his petition.

      Petitioner timely filed Form 1040, U.S. Individual Income Tax Return, for

2001.2 On his Form 1040 petitioner reported $201,519 of taxable income and a

tax liability of $59,354. On July 8, 2002, respondent assessed petitioner’s 2001

tax liability as reported on his Form 1040 and issued him a refund of $17,475.


      1
          Petitioner is not contesting the NFTL.
      2
          Petitioner and his wife file separate returns.
                                        -3-

[*3] Near the end of 2002 petitioner and his family moved to St. Thomas in the

U.S. Virgin Islands. During July 2002 petitioner had engaged an estate planning

attorney to start the process of setting up a family trust. On April 26, 2004,

petitioner established the First Aeolian Islands Trust (Trust), an irrevocable

grantor trust for Federal tax purposes, in Nevis, West Indies. The duration of the

Trust is 99 years unless terminated earlier by the trustee. Petitioner and his family

are named beneficiaries of the Trust, but he anticipates receiving no benefit from

the Trust.

      Petitioner funded the Trust with a $5 million contribution. At the time of

the contribution petitioner’s net worth was approximately $25 million. No

contributions to the Trust have been made since petitioner’s initial contribution in

2004. As the grantor of the Trust petitioner is required to report on his personal

tax returns any tax consequences of the Trust’s activities.

      Meridian Trust Co., Ltd. (Meridian), in Charlestown, Nevis, West Indies,

was the originally appointed trustee. Peter Meara was appointed the Trust

Protector. Petitioner maintains no control over the trustee to make distributions or

investments. Through the Trust Protector petitioner can request that the trustee be

changed, but he cannot force such action. Petitioner requested that the Trust
                                        -4-

[*4] Protector change the trustee to Southpac Trust Nevis, Ltd., the current trustee,

because he felt that Meridian was overbilling the Trust.

      During 2001 petitioner invested in a custom adjustable rate debt structure

(CARDS) transaction, about which he consulted a law firm before making his

investment. Petitioner did not report his CARDS transaction on his 2001 Federal

tax return. On March 18, 2002, the IRS issued Notice 2002-21, Tax Avoidance

Using Inflated Basis, 2002-1 C.B. 730, requiring taxpayers to report any

involvement in CARDS transactions. On May 10, 2004, the IRS notified

petitioner that his 2001 Form 1040 was being submitted for examination.

      In November 2006 petitioner moved back to the United States to pursue real

estate opportunities in the Gulf Coast region. He made a $27 million investment

in the “GO-Zone Initiative”, which resulted in a $10,490,130 net operating loss

(NOL). Under the Gulf Opportunity Zone Act (GO Zone)3 petitioner was able to

deduct that NOL against income reported on previously filed Federal tax returns.

At the time of his investment, petitioner estimated that his net worth was

approximately $19 million, consisting of cash and liquid investments.

      3
       In December 2005 Congress passed the Gulf Opportunity Zone Act of
2005, Pub. L. No. 109-135, 119 Stat. 2577, in response to the devastation caused
by Hurricane Katrina in August 2005. The legislation provided tax relief and
incentives for individuals and businesses within the GO Zone. The GO Zone
includes various counties and parishes in Alabama, Louisiana, and Mississippi.
                                        -5-

[*5] Petitioner’s investments in the Gulf Coast consisted of both residential and

commercial real estate in Alabama, Louisiana, and Mississippi. The investments

were structured through limited liability companies (LLCs) which purchased each

asset. In addition to his personal cash investment, petitioner personally

guaranteed all of the loans the LLCs executed to purchase the assets. Petitioner

expected a 7% return on his cash investment. After making his cash investment in

the GO Zone, petitioner had approximately $6.5 million remaining in liquid assets.

      In the summer of 2009 petitioner learned that approximately half of the

residential properties owned by Slidell Property Management, LLC (Slidell), one

of the LLCs that purchased property in Louisiana through the GO Zone, contained

Chinese drywall. The Chinese drywall made the properties uninhabitable. The

lender for the Slidell properties foreclosed on the assets in 2011. At the time of

foreclosure, the outstanding balance on the loan for the Slidell assets was

approximately $4.5 million. The lender sold the properties in 2011 for

approximately $1.35 million.

      When the lender foreclosed on the Slidell properties, Louisiana law

provided borrowers with litigious rights to repurchase properties that had been

sold by a lender if there was an underlying debt obligation at the time of the sale.

Petitioner brought a suit against the buyer of the Slidell properties in March 2014
                                         -6-

[*6] and received a favorable ruling allowing him to repurchase the properties for

$1.5 million.

      Petitioner, as the sole member of Slidell, sold Slidell’s assets to Clairise

Court, LLC (Clairise Court), for $1.5 million. Petitioner was also the sole member

of Clairise Court. Clairise Court borrowed the funds for the purchase from

Antilles Offshore Investors, Ltd., a wholly owned LLC of Antilles Master Fund.

      Petitioner had created Antilles Master Fund in December 2013. Antilles

Master Fund had two investors: petitioner and Liberty Mountain Corp. (Liberty).

Petitioner invested $40,000 in Antilles Master Fund. Liberty was a wholly owned

corporation of the Trust, which the Trust had the power to create. Petitioner made

Liberty aware of his conflicts of interest regarding this transaction.

      Petitioner continued to have an interest in Clairise Court. He personally

guaranteed a $4.5 million loan for the LLC. Petitioner also continued to have an

interest in only one of the other LLCs formed to purchase property through the GO

Zone. The remaining GO Zone properties purchased through LLCs were sold or

foreclosed on by lenders. Petitioner personally guaranteed all of the other LLCs’

loans and remains personally liable on those loans for approximately $600,000 to

$700,000.
                                        -7-

[*7] On July 2, 2007, respondent issued to petitioner a statutory notice of

deficiency for 2001. On Form 4549-A, Income Tax Exemption Changes,

respondent made an upward adjustment to petitioner’s income from $201,519, as

reported on his Form 1040, to $13,886,234.

      In response to the statutory notice of deficiency petitioner filed a petition

with this Court.4 The parties reached a settlement that entitled petitioner to deduct

his NOL carryback from his GO Zone investment against his 2001 increased

income tax liability. On March 11, 2010, the Court entered a decision determining

that for tax year 2001 petitioner was liable for a deficiency of $1,135,192 and a

section 6662(a) accuracy-related penalty of $113,519. On April 19, 2010,

respondent timely assessed the additional tax and penalty.

      On August 31, 2010, respondent issued a final notice of intent to levy (levy

notice), informing petitioner of respondent’s intent to collect his 2001 unpaid tax

liability and providing notice of his right to a CDP hearing. Respondent filed

three NFTLs in September 2010. On September 14, 2010, respondent sent

petitioner notice of the NFTL filings, advising him that NFTLs had been filed and

informing him of his right to a CDP hearing.




      4
          Campbell v. Commissioner, T.C. Dkt. No. 9699-07 (Mar. 11, 2010).
                                         -8-

[*8] Petitioner timely sent Forms 12153, Request for a Collection Due Process or

Equivalent Hearing, in response to both the levy notice and the notice of NFTL.

In his request for the levy CDP hearing, petitioner disagreed with the proposed

levy and requested an installment agreement or an offer-in-compromise (OIC) as a

collection alternative. During the CDP hearing petitioner asked that his account

be placed in currently-not-collectible status.

      After submitting petitioner’s 2001 return for examination, respondent

opened examinations of petitioner’s subsequent years’ returns.5 Petitioner made

his request for currently-not-collectible status for one year to allow time for him to

resolve some of his financial problems. Respondent informed petitioner that his

account could not be placed in currently-not-collectible status given the open

examinations for other years.

      On January 31, 2012, respondent issued a notice of determination upholding

the proposed levy action. On March 1, 2012, petitioner timely filed a petition with

this Court. Respondent filed a motion for summary judgment on November 5,

2013. The Court held a hearing regarding the motion for summary judgment and




      5
        Each of the examinations for petitioner’s subsequent tax years was resolved
in his favor and resulted in no additional deficiency.
                                        -9-

[*9] ordered that the motion be held in abeyance and that the case be remanded to

the IRS Appeals Office.

      On March 28, 2014, petitioner submitted Form 656, Offer in Compromise,

on the basis of doubt as to collectibility. He offered to compromise all outstanding

liabilities for $12,603. He also submitted Form 433-A, Collection Information

Statement for Wage Earners and Self-Employed Individuals, with an attached

“explanation of circumstances”. Respondent conducted the supplemental CDP

hearing via correspondence. Using the guidelines provided by the Internal

Revenue Manual (IRM) and national and local standards for living expenses,

respondent calculated that petitioner’s reasonable collection potential (RCP) was

$1,499,698. Respondent’s calculation included the “net realizable equity” in the

Trust of $1,493,912.

      On January 14, 2016, respondent issued the first supplemental notice of

determination sustaining the proposed levy. Respondent rejected petitioner’s OIC

because of the disparity between the offer and petitioner’s RCP and for issues

related to transferee, nominee, and alter ego theories.

      On May 16, 2016, respondent filed a second motion for summary judgment.

On June 10, 2016, petitioner filed a motion to remand proceedings to the IRS

Appeals Office for further consideration and another supplemental CDP hearing.
                                       - 10 -

[*10] Petitioner’s motion to remand contended that respondent failed to address

State law issues that could affect nominee and alter ego theories. On June 10,

2016, the Court denied respondent’s second motion for summary judgment

because respondent had not presented enough information regarding the Trust and

the State law issues that could affect the Government’s ability to reach the Trust

assets. Accordingly, the Court granted petitioner’s motion to remand the

proceedings to the IRS Appeals Office for further consideration of State law

issues.

      Respondent conducted the second supplemental CDP hearing via

correspondence. The Appeals officer again rejected petitioner’s OIC of $12,603.

She recommended that petitioner increase his offer to $1.5 million. In the second

supplemental notice of determination the Appeals officer increased petitioner’s

RCP to more than $19.5 million. Her calculations were different from her prior

calculations because she no longer included both the assets of the Trust and the $5

million used to fund the Trust; she also included as dissipated assets funds

petitioner used for investments between 2006 and 2010. On June 11, 2018,

respondent issued a second supplemental notice of determination formally

rejecting petitioner’s OIC as not in the best interest of the Government and

sustaining the proposed levy.
                                        - 11 -

[*11]                                 OPINION

        Section 6330 requires the Secretary to furnish a taxpayer notice and

opportunity for a hearing before an impartial officer or employee of the IRS

Appeals Office before levying on the person’s property. At the hearing the person

may raise any relevant issue relating to the unpaid tax or the proposed levy,

including spousal defenses, challenges to the appropriateness of the collection

action, and offers of collection alternatives. Sec. 6330(c)(2). The taxpayer may

challenge the existence or the amount of the underlying tax liability for any period

only if she or he did not receive a notice of deficiency or did not otherwise have an

opportunity to dispute the liability. Sec. 6330(c)(2)(B); Sego v. Commissioner,

, 609 (2000). No liability challenge is raised in this case.

        Following the hearing the Appeals officer must determine whether

proceeding with the proposed collection action is appropriate. In making that

determination the Appeals officer is required to take into consideration:

(1) whether the requirements of any applicable law or administrative procedure

have been met, (2) any relevant issues raised by the taxpayer, and (3) whether the

proposed collection action balances the need for the efficient collection of taxes

with the legitimate concern of the taxpayer that the collection action be no more
                                        - 12 -

[*12] intrusive than necessary. Sec. 6330(c)(3); see also Lunsford v.

Commissioner, 

, 184 (2001).

I.    Standard of Review

      Where the validity of the underlying tax liability is properly at issue, we

review the determination de novo. Sego v. Commissioner, 

. The

Court reviews administrative determinations made by the Appeals Office

regarding nonliability issues for abuse of discretion. Goza v. Commissioner, 

, 182 (2000). The validity of petitioner’s underlying tax liability is not at

issue here. Accordingly, we review for abuse of discretion.

      In determining whether an abuse of discretion exists, we consider whether

the determination was arbitrary, capricious, or without sound basis in fact or law.

See Murphy v. Commissioner, 

, 320 (2005), aff’d, 

(1st

Cir. 2006). The Court does not conduct an independent review of what would be

an acceptable OIC. 

Appeals officer follows all statutory and

administrative guidelines and provides a reasoned, balanced decision, the Court

will not reweigh the equities. Link v. Commissioner, T.C. Memo. 2013-53,

at *12.
                                         - 13 -

[*13] II.    Abuse of Discretion

       Section 7122(a) authorizes the Secretary to compromise any civil or

criminal case arising under the internal revenue laws. Section 7122(d) authorizes

the Secretary to prescribe guidelines for officers and employees of the IRS to

determine whether an OIC is adequate. Regulations implementing section 7122

set forth three grounds for the compromise of a liability: (1) doubt as to liability,

(2) doubt as to collectibility, and (3) promotion of effective tax administration.

Sec. 301.7122-1(b), Proced. & Admin. Regs.

       Doubt as to collectibility exists in any case where the taxpayer’s assets and

income are less than the full amount of the tax liability. 

Generally, under respondent’s administrative pronouncements, an OIC based on

doubt as to collectibility will be acceptable only if the offer reflects the RCP of the

case; i.e., that amount less than the full liability that the IRS could collect through

means such as administrative and judicial collection remedies. Rev. Proc. 2003-

71, sec. 4.02(2), 2003-2 C.B. 517; see also Murphy v. Commissioner, 

.

       The Appeals officer rejected petitioner’s OIC of $12,603 because she

calculated petitioner’s RCP as $19.5 million, which included dissipated assets,

amounts collectible from third parties, and assets beyond the reach of the
                                        - 14 -

[*14] Government. Petitioner contends that the Appeals officer abused her

discretion by failing to consider relevant issues he raised during the CDP hearings.

      When a taxpayer submits an OIC based on doubt as to collectibility, the

Appeals officer follows IRM guidelines to determine the taxpayer’s RCP. IRM pt.

5.8.4.3 (Jan. 18, 2018). Those guidelines consist of determining: (1) assets,

including dissipated assets, (2) future income, (3) amounts collectible from third

parties, and (4) assets available to the taxpayer but beyond the reach of the

Government. 

(Apr. 30, 2015). The IRS may reject an OIC when

the taxpayer’s ability to pay is greater than the amount she or he proposes to pay

under the compromise proposal. See Johnson v. Commissioner, 

, 486

(2011), aff’d, 502 F. App’x 1 (D.C. Cir. 2013). Under IRS procedures, respondent

will not accept a compromise that is less than the RCP value of the case absent a

showing of special circumstances. See Rev. Proc. 2003-71, sec. 4.02(2). The IRS

has no duty to negotiate with a taxpayer before rejecting an OIC. Fargo v.

Commissioner, 

, 713 (9th Cir. 2006), aff’g T.C. Memo. 2004-13.

      A.     Dissipated Assets

      According to the IRM, including dissipated assets in calculating the RCP is

applicable only “in situations where it can be shown the taxpayer has sold,

transferred, encumbered or otherwise disposed of assets in an attempt to avoid the
                                        - 15 -

[*15] payment of the tax liability” or otherwise used the assets “for other than the

payment of items necessary for the production of income or the health and welfare

of the taxpayer or their family, after the tax has been assessed or during a period

up to six months prior to or after the tax assessment.” IRM pt. 5.8.5.18(1) (Mar.

23, 2018). The IRM instructs Appeals officers to use a three-year look-back

period, from the date the offer is made, to determine whether it is appropriate to

include dissipated assets in the RCP calculation. The look-back period includes

the year that an OIC is submitted. 

An Appeals officer is

allowed to look beyond the three-year period of the offer submission if the transfer

of the asset(s) occurred within six months before or after the assessment of the tax

liability. 

      Petitioner was not given the opportunity to submit an OIC until after this

Court remanded the CDP proceedings to the Appeals Office. He submitted his

OIC on March 28, 2014. Accordingly, the Appeals officer should have looked

only to 2012 for any dissipated assets. However, under the IRM guidelines, she

could have looked back to the assessment date, April 19, 2010, for any dissipated

assets if there was a transfer of assets within the six months before or after the

assessment date.
                                        - 16 -

[*16] In the RCP calculation respondent included, as dissipated assets, the funds

petitioner had transferred to the Trust. Petitioner contributed $5 million to the

Trust on April 26, 2004, 6 years before the assessment period look-back and 10

years before he made his OIC. This was his only contribution to the Trust. On

May 10, 2004, after making the Trust contribution, petitioner was notified that his

2001 return was under examination. Petitioner was not aware of a potential audit

examination of his 2001 tax return or any increased income tax liability that might

arise from the examination until after making his contribution to the Trust.

      Even if petitioner was aware of a potential tax liability, his net worth after

making the contribution to the Trust exceeded any potential tax liability arising

from the examination of his 2001 Federal tax return. During the CDP

proceedings, petitioner demonstrated that his net worth was $19 million in 2006.

This amount would have more than covered the deficiency for 2001. We find that

it was an abuse of discretion for the Appeals officer to include the Trust assets as

dissipated assets.

      Respondent’s second supplemental notice of determination also concludes

that, although petitioner’s net worth exceeded $19 million in 2006, by 2010 he had

$3.5 million of negative equity in his investments. Respondent asserted that in

addition to the assets held by the Trust, the funds petitioner used for the
                                        - 17 -

[*17] production of income between 2006 and 2010 should be included in

petitioner’s RCP as dissipated assets. Respondent contends that in 2006 petitioner

knew the examination results for his 2001 tax return and asserts that if petitioner

had conserved his assets he would have over $14 million available to pay his tax

liability. In reaching this conclusion respondent increased petitioner’s RCP to just

over $19.5 million.

      Respondent states that there is a reasonableness standard attached to the

IRM guidelines about expenses for the production of income. Respondent

concludes that it was unreasonable for petitioner to make the investments he made

between 2006 and 2010 because of the loss he suffered and because he had a “duty

to preserve sufficient assets” to pay a tax obligation of which respondent had made

him aware.

      Petitioner did not waste his wealth in an effort to deprive the Government or

to shirk his financial obligation to the public fisc. In 2006 petitioner made a

substantial investment in the Gulf Coast region under the GO Zone legislation.

After making the investment, he still had cash on hand of more than $6 million.

He was unaware of the Chinese drywall issue that affected many of the properties

he purchased through the LLCs and the looming financial crisis. Respondent

provides no consideration of these issues in the second supplemental notice of
                                        - 18 -

[*18] determination and instead asserts that petitioner wasted his wealth in an

effort to establish a loss. There is no indication in the record, and none was

demonstrated at trial, that petitioner invested in the GO Zone in an attempt to

avoid paying his 2001 tax liability. We find that it was an abuse of discretion for

respondent to make this determination.

      B.     Amounts Collectible From Third Parties

      In its first supplemental notice of determination respondent concluded that

if the Trust was not considered a dissipated asset then it held assets as a transferee,

nominee, or alter ego of petitioner. The second time this Court heard motions on

this case, it denied respondent’s motion for summary judgment and remanded the

case to the Appeals Office to further determine whether the Trust could be

considered a transferee, nominee, or alter ego of petitioner. The Court directed

respondent to address State law issues about whether petitioner has property rights

in the Trust under State law. Respondent used Connecticut law.

      Section 6331(a) generally authorizes respondent to collect tax liabilities by

levy against all property and property rights of the taxpayer. Section 6331 is

“broad and reveals on its face that Congress meant to reach every interest in

property that a taxpayer might have.” Drye v. United States, 

, 56

(1999) (quoting United States v. Nat’l Bank of Commerce, 

, 719-720
                                        - 19 -

[*19] (1985)). The levy reaches property held by a third party if that third party is

holding the property as a nominee or alter ego of the taxpayer. See G.M. Leasing

Corp. v. United States, 

, 350-351 (1977). The nominee theory

focuses on whether the taxpayer is the true beneficial owner of property according

to how she or he treats the property, while the alter ego theory analyzes whether a

taxpayer has pierced the corporate veil. Oxford Capital Corp. v. United States,

, 284 (5th Cir. 2000).

      The Supreme Court has stated that the transferee, nominee, or alter ego

theory requires a two-part analysis, which looks first to State law to determine

what rights a taxpayer has in property and then turns to Federal law to determine

whether a taxpayer’s rights in that property qualify as property or rights to

property under Federal tax law. 

. Petitioner created the Trust

in 2004 as an irrevocable grantor trust. He and his family are named beneficiaries

of the Trust. Under section 671, petitioner is required to report all tax

consequences of the Trust’s activities on his personal Federal tax return. The

Trust document indicates that petitioner has no control over the trustee and cannot

force the trustee to make distributions or investments. Petitioner contends that as

a beneficiary of the Trust he does not hold a property interest in the Trust assets.
                                       - 20 -

[*20] In the second supplemental notice of determination respondent looks to

Connecticut law and the nominee theory and notes that Connecticut has not

developed a body of law with regard to nominee theory. Respondent indicates that

the Supreme Court of Connecticut would adopt Federal principles of nominee

theory. Respondent has not presented any evidence that Connecticut courts have

applied or adopted nominee theory, and we are not in a position to say that the

judicial branch of Connecticut would adopt such a theory.6 See United States v.

Snyder, 

, 296 (D. Conn. 2002) (specifically declining to make

the nominee theory Connecticut State law).

      Because respondent has not presented any evidence supporting the

determination that petitioner has a property right in the Trust under State law, we

find that respondent’s determination that the Trust was a nominee of petitioner

was arbitrary, capricious, and without sound basis in fact or law. Accordingly, we

further find that the Appeals officer abused her discretion in making that

determination.




      6
       Respondent did not address the alter ego theory in the second supplemental
notice of determination.
                                       - 21 -

[*21] C.     Assets Available to the Taxpayer but Beyond the Reach of the
             Government

      When a taxpayer submits an OIC based on doubt as to collectibility, the

IRS’ calculation of the taxpayer’s RCP includes an analysis of assets available to

the taxpayer but beyond the reach of the Government. IRM pt. 5.8.4.3.1.

Respondent posits that, in the alternative, because petitioner appointed the Trust

Protector, and because the Trust indirectly invested in petitioner’s GO Zone

business ventures, petitioner maintains sufficient control over the Trust and thus

has access to the Trust’s assets.

      The Trust’s organizational documents allow the trustee to create companies

for the purpose of making investments. The Trust created Liberty as an

investment vehicle. Petitioner submitted a proposal requesting that Liberty invest

in Antilles Offshore Investors, Ltd., a wholly owned LLC of Antilles Master Fund.

Petitioner set forth the proposed investment and described, in detail, his personal

conflicts of interest in the investment. The investment petitioner proposed funded

Clairise Court’s repurchase of the properties previously owned by Slidell. The

lender on the properties owned by Slidell had foreclosed and sold the properties to

an unrelated buyer. Louisiana law allowed petitioner--through litigious rights--to

repurchase the property at the price which the new buyer had paid.
                                         - 22 -

[*22] The trustee, in its sole discretion, directed a portion of the Trust’s assets to

be invested in Antilles Offshore Investors, Ltd. Petitioner could not and did not

control this decision. For reasons addressed previously, we conclude that the

Trust’s assets are not considered assets available to petitioner but beyond the reach

of the Government. Therefore, we find that the Appeals officer abused her

discretion in determining that petitioner had control over the Trust’s assets.

      We have considered all other arguments made and facts presented in

reaching our decision, and to the extent not discussed above, we conclude that

they are moot, irrelevant, or without merit.

      For the foregoing reasons, the supplemental notice of determination will not

be sustained.


                                                  An appropriate order and decision

                                        will be entered.