Case: 13-13040     Date Filed: 07/22/2014   Page: 1 of 5


                                                           [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13040
                        Non-Argument Calendar
                      ________________________

                            Agency No. 25740-11L



JACK E. ROBINSON,

                                                             Petitioner-Appellant,

                                    versus

COMMISSIONER OF IRS,

                                                           Respondent-Appellee.

                      ________________________

                  Petition for Review of a Decision of the
                               U.S. Tax Court
                        ________________________

                               (July 22, 2014)




Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
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       Jack E. Robinson appeals the tax court’s grant of summary judgment in

favor of the Commissioner of the Internal Revenue Service (IRS). Robinson

argues that the IRS failed to provide him either a telephonic or in-person collection

due-process (CDP) hearing and that we must remand his case to allow the IRS to

conduct such a hearing. Robinson further argues that, because the tax court failed

to apply the correct standard of review or to state the standard of review it applied,

we must remand. Upon review, 1 we reject Robinson’s arguments and affirm.

                                    I. BACKGROUND

       This case arose when the IRS sent Robinson a notice of its intent to levy his

assets in order to satisfy his unpaid income tax liability. In response, Robinson did

not contest his tax liability, but he did submit a request for a CDP hearing

indicating that he was interested in discussing a collection alternative to the IRS’s

proposed levy. The IRS responded by requesting Robinson provide certain

information necessary for the IRS to consider a collection alternative (e.g., bank

statements, proof of necessary living expenses, etc.) and by scheduling a CDP

hearing for September 27, 2011. Robinson subsequently telephoned the IRS to

request a later date and an in-person CDP hearing. The IRS agreed to postpone the

CDP hearing until October 12, 2011, but informed Robinson that it could only

schedule an in-person CDP hearing once he provided the information that had

       1
        “We review the Tax Court’s factual findings for clear error and its legal conclusions de
novo.” Creel v. Comm’r of Internal Revenue, 

, 1139 (11th Cir. 2005).


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previously been requested. The IRS also reminded Robinson that it would not

approve a collection alternative unless he submitted the requested information in

advance of the CDP hearing.

      Robinson never submitted the information the IRS had requested, and on the

date of the scheduled telephonic CDP hearing, Robinson did not call in as directed.

As a result, the IRS dismissed his petition for a collection alternative and sustained

the levy action as initially proposed. Robinson appealed this decision to the tax

court, and the tax court ultimately granted the IRS Commissioner’s motion for

summary judgment.

                                  II. DISCUSSION

A.    The IRS’s Failure to Provide a Hearing

      While the IRS may not levy the property of a taxpayer without first

providing notice of the right to a hearing, 26 U.S.C. § 6330(a)(1), these hearings

are not bound by the formal hearing requirements of the Administrative Procedure

Act and can take place in-person, over the phone, or in writing, 26 C.F.R.

§ 301.6330-1(d)(2). Ordinarily, the IRS will grant an in-person hearing pursuant to

a non-frivolous request, but when a taxpayer requests a hearing for the purpose of

discussing collection alternatives, the IRS generally does not grant an in-person

hearing until the taxpayer, having had an opportunity to do so, provides certain

financial information demonstrating his eligibility for a collection alternative. 

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      In light of these policies, Robinson’s argument concerning the IRS’s failure

to provide a hearing is frivolous. The IRS provided Robinson with a telephonic

CDP hearing pursuant to applicable regulations, but Robinson failed to call in so

that he could participate. Robinson can show no entitlement to an in-person CDP

hearing, particularly given his failure to comply with the IRS’s request for

information, so the telephonic hearing the IRS attempted to hold was satisfactory.

See Murphy v. Comm’r of Internal Revenue, 

, 30 (1st Cir. 2006)

(explaining that “no face-to-face meetings are necessary” in the CDP hearing

process); Kindred v. Comm’r of Internal Revenue, 

, 691 n.4 (7th Cir.

2006) (“[CDP] hearings are informal affairs. Indeed, the regulations provide that

no transcript need be created and that the hearing itself may be conducted via

telephone or the mail.”).

B.    The Tax Court’s Failure to State Its Standard of Review

      Robinson’s second argument is also frivolous. Robinson has cited no

authority establishing a tax court’s obligation to explicitly state the standard of

review it applies, and nothing in the tax court’s decision indicates that applied an

incorrect standard or that it would have reached a different result applying de novo

review. Moreover, Robinson invited the tax court to apply an abuse-of-discretion

standard by stating in his response to the Commissioner’s motion for summary

judgment that his case should be reviewed for “(arguably) abuse of discretion.”



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Even assuming the tax court erroneously applied an abuse-of-discretion standard,

we will not fault the tax court for an error Robinson invited. See Fed. Trade

Comm’n v. AbbVie Prods. LLC, 

, 66 (11th Cir. 2013).

                               III. CONCLUSION

      In light of the foregoing, we affirm the tax court’s grant of summary

judgment to the IRS Commissioner.

      AFFIRMED.




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