Judges: RUWE
Attorneys: Kevin Patrick Brady, Pro se. Anne D. Melzer and Kevin M. Murphy , for respondent.
Filed: Apr. 28, 2011
Latest Update: Dec. 05, 2020
Summary: KEVIN PATRICK BRADY, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT Docket No. 11146–09L. Filed April 28, 2011. In this sec. 6330, I.R.C., CDP case, R determined to collect P’s unpaid tax for 2005 by levy. P claims that he should be given credit for overpayments that he made for prior tax years that would extinguish his 2005 liability. P had previously filed claims for refund for the prior years that R disallowed, and P failed to file suit for refund or credit within the 2-year perio
Summary: KEVIN PATRICK BRADY, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT Docket No. 11146–09L. Filed April 28, 2011. In this sec. 6330, I.R.C., CDP case, R determined to collect P’s unpaid tax for 2005 by levy. P claims that he should be given credit for overpayments that he made for prior tax years that would extinguish his 2005 liability. P had previously filed claims for refund for the prior years that R disallowed, and P failed to file suit for refund or credit within the 2-year period..
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KEVIN PATRICK BRADY, PETITIONER v. COMMISSIONER OF
INTERNAL REVENUE, RESPONDENT
Docket No. 11146–09L. Filed April 28, 2011.
In this sec. 6330, I.R.C., CDP case, R determined to collect
P’s unpaid tax for 2005 by levy. P claims that he should be
given credit for overpayments that he made for prior tax years
that would extinguish his 2005 liability. P had previously filed
claims for refund for the prior years that R disallowed, and
P failed to file suit for refund or credit within the 2-year
period of limitations prescribed by sec. 6532, I.R.C. Held:
Because P did not file suit within the 2-year period prescribed
in sec. 6532, I.R.C., sec. 6514, I.R.C., bars any credit for the
422
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(422) BRADY v. COMMISSIONER 423
alleged prior years’ overpayments that might otherwise be
available to satisfy P’s unpaid liability for 2005. Held, further,
R’s determination to levy is sustained.
Kevin Patrick Brady, pro se.
Anne D. Melzer and Kevin M. Murphy, for respondent.
RUWE, Judge: The petition in this case was filed in
response to a Notice of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330 (notice of deter-
mination). 1 We must decide whether to sustain the deter-
mination by respondent’s Appeals Office to collect petitioner’s
unpaid income tax liability for tax year 2005 by levy.
FINDINGS OF FACT
At the time the petition was filed, petitioner resided in
New York.
Petitioner did not timely file an income tax return for
2005. In 2007 respondent prepared a substitute for return
and issued a notice of deficiency to petitioner for his 2005
income tax liability. Petitioner did not file a petition, and, on
March 3, 2008, respondent assessed petitioner’s 2005 income
tax liability, along with additions to tax and interest.
On October 27, 2008, respondent sent to petitioner a Letter
1058, Final Notice of Intent to Levy and Notice of Your Right
to a Hearing, regarding petitioner’s unpaid liability for tax
year 2005 that indicated an amount due of $18,455.65. On
November 6, 2008, respondent received from petitioner a
Form 12153, Request for a Collection Due Process or Equiva-
lent Hearing. Although the Letter 1058 pertained only to
2005, petitioner indicated on the Form 12153 that he wanted
to discuss tax years 2004 through 2006 at the collection due
process (CDP) hearing. By letter dated December 9, 2008,
respondent informed petitioner that his request for a CDP
hearing for tax year 2004 was not timely and that with
respect to tax year 2006, no notice of Federal tax lien or
intent to levy had been issued and he did not have a right
to a CDP hearing for those tax years.
In early 2009 petitioner filed his 2005 tax return, which
was accepted by the Internal Revenue Service (IRS). As a
result, much of the previously assessed tax for 2005 was
1 Unless otherwise indicated, all section references are to the Internal Revenue Code as
amended.
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424 136 UNITED STATES TAX COURT REPORTS (422)
abated. (As of March 2, 2010, the balance due on petitioner’s
account for 2005 was $520.61.)
On April 8, 2009, a CDP hearing was held regarding the
collection of petitioner’s remaining unpaid 2005 tax liability.
At the hearing petitioner appears to have argued that he was
entitled to credits for overpayments in prior years that
should be used to satisfy his 2005 liability. Petitioner’s posi-
tion appeared to be that he sustained a net operating loss
(NOL) in each of the years 2001 and 2002 that should be car-
ried back to 1999 and 2000, which would result in overpay-
ments for 1999 and 2000 that should be used to satisfy his
liability for 2005. Respondent’s settlement officer rejected
petitioner’s position because his claims for overpayments had
previously been considered and disallowed. Petitioner raised
no other issues.
Respondent’s Appeals Office sent to petitioner a Notice of
Determination Concerning Collection Action(s) Under Section
6320 and/or 6330 dated April 22, 2009, in which it deter-
mined to proceed with collection by levy. On May 11, 2009,
petitioner filed a petition with this Court in response to the
notice of determination. Petitioner asserts that the IRS
should have allowed his claimed NOL carrybacks from 2001
and 2002 to 1999 and 2000 and that the resulting credits or
refunds satisfy his liability for 2005.
Previous Actions Regarding Petitioner’s Claimed Overpay-
ments for Prior Years
Petitioner did not claim NOLs on his original 2001 and
2002 Federal income tax returns, which were each filed late.
On September 2, 2004, petitioner filed amended returns for
2001 and 2002 claiming an NOL in each year and indicated
that he wanted to carry the NOLs back to his taxable years
1999 and 2000 and claimed refunds for 1999 and 2000.
Respondent treated petitioner’s amended returns as claims
for refund for 1999 and 2000 and disallowed them because
respondent determined that petitioner’s election to waive the
normal 5-year carryback period was not timely made on his
original returns for 2001 and 2002. In November 2004
respondent sent to petitioner notices disallowing petitioner’s
refund claims. The notices of disallowance were sent by cer-
tified mail to petitioner in care of Janine B. Knauf (Ms.
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(422) BRADY v. COMMISSIONER 425
Knauf), to whom petitioner had granted a power of attorney.
Ms. Knauf had prepared petitioner’s amended returns for
2001 and 2002 and represented petitioner with respect to his
claims. On May 8, August 15, and September 8, 2005, peti-
tioner mailed letters to respondent protesting respondent’s
disallowance of the refund claims. In response to petitioner’s
protests, respondent sent to petitioner by certified mail
another letter dated December 29, 2005, again disallowing
petitioner’s refund claims. 2
Petitioner appealed respondent’s disallowance of his claims
for refund to respondent’s Appeals Office. By letter dated
February 16, 2007, the Appeals Office sustained the denial
of petitioner’s claims for refund and informed him that if he
wished to pursue the matter further he had to file suit in
either a U.S. District Court or the U.S. Court of Federal
Claims ‘‘within two-years from the date on the letter denying
your claim, which the Andover IRS Campus mailed to you on
December 29, 2005.’’
On March 26, 2007, petitioner filed a suit in the U.S. Dis-
trict Court for the Western District of New York (District
Court) against eight individuals, including the Commissioner
of Internal Revenue and a U.S. District Court judge. On
April 23, 2007, the District Court dismissed petitioner’s
entire suit for lack of jurisdiction. The District Court dis-
missed the claims against the individual defendants,
characterizing those claims as frivolous and noting that peti-
tioner’s complaint was ‘‘nothing more than a compilation of
his past grievances, pasted together in an attempt to create
a portrait of a conspiracy against him to which it appears
that nearly everyone who has crossed his path is a party’’. 3
The District Court characterized any claims petitioner was
making against the IRS as ‘‘less clear’’, noting that petitioner
2 The letter dated Dec. 29, 2005, references both tax years 2001 and 2002 in disallowing peti-
tioner’s refund claims.
3 The District Court issued a decision and order, which begins by noting that
[Petitioner] has been previously subject to a sanction order in Civil Action No. 03–CV–6305. See
Brady v. Van Strydonck, 93 Fed. Appx. 325 (2d Cir. 2004) (affirming the District Court’s Deci-
sion and Order dated July 17, 2003). Subsequently, * * * [petitioner] has had a number of other
actions dismissed (06–CV–6111, 06–CV–6112, 06–CV–6113, 06–CV–6114 and 06–CV–6134). In
these cases, * * * [petitioner] was denied a certificate of appealability and the appeals dis-
missed because the Court of Appeals for the Second Circuit found ‘‘Appellant failed to make a
substantial showing of the denial of a constitutional right.’’ COA Docket No. 06–2246, mandate
entered October 20, 2006 (consolidating cases). As a result of the sanction order, the instant ac-
tion is reviewed for jurisdiction prior to the issuance of any Summonses. * * * [Brady v.
Larimer, No. 07–CV–6164CJS(P) (W.D.N.Y. Apr. 23, 2007); fn. ref. omitted.]
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426 136 UNITED STATES TAX COURT REPORTS (422)
appeared to argue that he qualified as a small business and
that the IRS improperly refused to permit him a ‘‘ ‘two year
carryback’.’’ The District Court noted that the bulk of peti-
tioner’s allegations stressed the adverse impact suffered
because the IRS sought additional taxes rather than claims
that he overpaid taxes. The District Court dismissed any
claim petitioner was making against the IRS for lack of juris-
diction, stating that petitioner’s ‘‘papers do not establish that
he has met the conditions for jurisdiction provided by 26
U.S.C. §7422(a) or any exceptions thereto’’. 4 Petitioner
appealed the decision of the District Court, and, on January
23, 2008, the Court of Appeals for the Second Circuit
affirmed the District Court’s decision and order. Brady v.
Larimer, 262 Fed. Appx. 316 (2d Cir. 2008).
OPINION
A. Collection Review Principles
Section 6330(a)(1) provides that no levy may be made on
any property or right to property of any person unless the
Secretary has notified the person in writing of his or her
right to a hearing under this section before the levy is made.
The notice must include in simple and nontechnical terms,
inter alia, the right of the person to request a hearing to be
held by the IRS Office of Appeals. See sec. 6330(a)(3)(B).
At the hearing the person may raise any relevant issue
relating to the unpaid tax or the proposed levy, including
appropriate spousal defenses, challenges to the appropriate-
ness of collection actions, and offers of collection alternatives.
Sec. 6330(c)(2)(A). Section 6330(c)(2)(B) further provides that
the person may also raise at the hearing challenges to the
existence or amount of the underlying tax liability for any
tax period if the person did not receive any statutory notice
of deficiency for the tax liability or did not otherwise have an
opportunity to dispute the tax liability. Section 6330(d)(1)
confers jurisdiction on the Tax Court to review the deter-
mination of the Appeals officer.
4 Sec. 7422(a) specifies requirements for tax refund suits. See infra pp. 428–429.
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(422) BRADY v. COMMISSIONER 427
B. The Parties’ Contentions
Petitioner’s challenge to respondent’s determination resur-
rects his refund claims. Petitioner contends that the alleged
NOLs for 2001 and 2002 should be carried back to 1999 and
2000 and that the resulting overpayment credits from 1999
and 2000 should be used to satisfy his tax liability for 2005.
Respondent contends that petitioner is not entitled to over-
payment credits and that those previously disallowed over-
payment claims are now time barred.
In certain situations we have considered taxpayers’ claims
that their liability for the year involved in a section 6330
collection proceeding should be eliminated by overpayments
in other years. See Freije v. Commissioner, 125 T.C. 14
(2005); Landry v. Commissioner,
116 T.C. 60 (2001). 5
Assuming that it would be appropriate in this case to con-
sider the merits of petitioner’s claims of overpayments in
prior years, we will first consider if those claims are now
time barred.
Whether petitioner is entitled to credit against his unpaid
2005 taxes for alleged overpayments in prior years depends
first on whether his overpayment claims were made within
the period of limitations for making such claims. See Landry
v. Commissioner, supra at 62.
C. Period of Limitations for Overpayment Claims
Section 6402(a) provides:
SEC. 6402(a). GENERAL RULE.—In the case of any overpayment, the Sec-
retary, within the applicable period of limitations, may credit the amount
5 In Freije v. Commissioner, 125 T.C. 14, 26–28 (2005), we stated:
Since an ‘‘unpaid tax’’ is the sine qua non of the Commissioner’s authority to levy, we believe
a claim directed at the status of the tax as ‘‘unpaid’’ is a ‘‘relevant issue relating to the unpaid
tax or the proposed levy’’. Sec. 6330(c)(2)(A). Meaningful review of a claim that a tax sought
to be collected by levy has been paid, by means of a remittance or an available credit, will typi-
cally require consideration of facts and issues in nondetermination years, as those years may
constitute the years to which a remittance was applied or from which a credit originated.
* * * * * * *
* * * [W]e hold that our jurisdiction under section 6330(d)(1)(A) encompasses consideration
of facts and issues in nondetermination years where the facts and issues are relevant in evalu-
ating a claim that an unpaid tax has been paid.
* * * * * * *
* * * We conclude that our jurisdiction under section 6330(d)(1)(A) extends to the consider-
ation of facts and issues in a nondetermination year only insofar as the tax liability for that
year may affect the appropriateness of the collection action for the determination year. * * *
[Fn. ref. omitted.]
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428 136 UNITED STATES TAX COURT REPORTS (422)
of such overpayment, including any interest allowed thereon, against any
liability in respect of an internal revenue tax on the part of the person who
made the overpayment and shall, subject to subsections (c), (d), (e), and (f)
refund any balance to such person. [Emphasis added.]
‘‘[U]nder section 6402(a) the application of overpayments of
a taxpayer from other years to a particular year of the tax-
payer is subject to the applicable refund period of limita-
tions.’’ Crum v. Commissioner, T.C. Memo. 2008–216. Thus,
if petitioner’s overpayment claims are statutorily time barred
(assuming arguendo that there was an overpayment), any
claim that overpayments are available as a credit to offset
the 2005 tax liability would also be time barred.
The period of limitations for filing a claim for credit or
refund with the IRS is found in section 6511. Petitioner’s
refund claims, which were made when he filed his amended
2001 and 2002 returns, were timely under section 6511, and
respondent did not dispute the timeliness of those refund
claims. 6 However, respondent disallowed petitioner’s refund
claims for other reasons. 7
Where a taxpayer is not satisfied with the IRS’ decision
regarding his refund claim, the taxpayer may seek judicial
relief. Section 7422(a) provides, in pertinent part:
6 Sec. 6511(a) provides:
SEC. 6511(a). PERIOD OF LIMITATION ON FILING CLAIM.—Claim for credit or refund of an over-
payment of any tax imposed by this title in respect of which tax the taxpayer is required to
file a return shall be filed by the taxpayer within 3 years from the time the return was filed
or 2 years from the time the tax was paid, whichever of such periods expires the later, or if
no return was filed by the taxpayer, within 2 years from the time the tax was paid. * * *
Sec. 6511(b)(2) provides two lookback periods to determine the limitation on the amount of
a credit or refund. However, special rules apply with respect to an NOL. Sec. 6511(d)(2). The
limitation period under the special rule with respect to an NOL, is as follows:
(A) PERIOD OF LIMITATION.—If the claim for credit or refund relates to an overpayment attrib-
utable to a net operating loss carryback or a capital loss carryback, in lieu of the 3-year period
of limitations prescribed in subsection (a), the period shall be that period which ends 3 years
after the time prescribed by law for filing the return (including extensions thereof) for the tax-
able year of the net operating loss or net capital loss which results in such carryback, or the
period prescribed in subsection (c) in respect of such taxable year, whichever expires later.
In the case of such a claim, the amount of the credit or refund may exceed the portion of
the tax paid within the period provided in subsection (b)(2) or (c), whichever is applicable, to
the extent of the amount of the overpayment attributable to such carryback.
[Sec. 6511(d)(2)(A).]
Sec. 6511(c) provides special rules in the case of agreements for extensions of the period for
assessing tax and is not applicable in this case.
7 The refund claims were disallowed because respondent determined that petitioner’s election
to waive the normal 5-year carryback period was not timely made on his original returns for
2001 and 2002. We express no opinion on the correctness of this determination.
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(422) BRADY v. COMMISSIONER 429
No suit or proceeding shall be maintained in any court for the recovery of
any internal revenue tax alleged to have been erroneously or illegally
assessed or collected, or of any penalty claimed to have been collected with-
out authority, or of any sum alleged to have been excessive or in any
manner wrongfully collected, until a claim for refund or credit has been
duly filed with the Secretary, according to the provisions of law in that
regard, and the regulations of the Secretary established in pursuance
thereof.
Title 28 U.S.C. sec. 1346(a) (2006) provides:
(a) The district courts shall have original jurisdiction, concurrent with
the United States Court of Federal Claims, of:
(1) Any civil action against the United States for the recovery of any
internal-revenue tax alleged to have been erroneously or illegally assessed
or collected, or any penalty claimed to have been collected without
authority or any sum alleged to have been excessive or in any manner
wrongfully collected under the internal revenue laws;
Title 28 U.S.C. sec. 1491(a)(1) (2006) provides the jurisdic-
tional authority for such claims in the Court of Federal
Claims.
A taxpayer has a limited time in which to pursue a judicial
remedy for the recovery of tax paid. Section 6532(a), which
addresses the limitation periods applicable to such suits, pro-
vides:
(1) GENERAL RULE.—No suit or proceeding under section 7422(a) for the
recovery of any internal revenue tax, penalty, or other sum, shall be begun
before the expiration of 6 months from the date of filing the claim required
under such section unless the Secretary renders a decision thereon within
that time, nor after the expiration of 2 years from the date of mailing by
certified mail or registered mail by the Secretary to the taxpayer of a notice
of the disallowance of the part of the claim to which the suit or proceeding
relates. [Emphasis added.]
The initial notices of disallowance of petitioner’s refund
claims were sent to him by certified mail in November 2004.
Therefore, the period for filing a refund suit would have
expired in November 2006. The notices were sent to peti-
tioner in care of petitioner’s representative who had been
given a power of attorney for this matter. Petitioner argues
that he did not receive the IRS’ November 2004 notices dis-
allowing his refund claims. However, petitioner must have
received the notices because he mailed protest letters to the
IRS on May 8, August 15, and September 8, 2005, stating his
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430 136 UNITED STATES TAX COURT REPORTS (422)
disagreement with the IRS’ disallowance of his refund claims
and asking for reconsideration. 8
Petitioner acknowledged that he received respondent’s sub-
sequent notice of disallowance, which was sent to him by cer-
tified mail on December 29, 2005. He also received the letter
from respondent’s Appeals Office dated February 16, 2007,
sustaining the denial of his refund claim. Section 6532(a)(4)
addresses situations where a previously disallowed refund
claim has been given reconsideration. Section 6532(a)(4) pro-
vides:
(4) RECONSIDERATION AFTER MAILING OF NOTICE.—Any consideration,
reconsideration, or action by the Secretary with respect to such claim fol-
lowing the mailing of a notice by certified mail or registered mail of dis-
allowance shall not operate to extend the period within which suit may be
begun.
Section 6532(a)(4) makes clear that the additional consider-
ation given by respondent did not operate to extend the
period within which petitioner had to file suit. See RHI
Holdings, Inc. v. United States, 142 F.3d 1459 (Fed. Cir.
1998); Brach v. United States, 98 Fed. Cl. 60 (2011); Estate
of Orlando v. United States, 94 Fed. Cl. 286, 290 (2010) (‘‘The
two-year period runs from the date the notice of disallowance
is sent and, by statute, it is not tolled by any administrative
appeals.’’).
We note, however, that the letter from respondent’s
Appeals Office dated February 16, 2007, which sustained the
disallowance of petitioner’s claims, erroneously informed peti-
tioner that he could file a refund suit ‘‘within two-years from
the date on the letter denying your claim, which the Andover
IRS Campus mailed to you on December 29, 2005.’’ Where a
taxpayer has been misled by the IRS into believing that he
had additional time for filing a refund suit, there is some
authority for giving the taxpayer the benefit of the additional
time. See Miller v. United States, 500 F.2d 1007 (2d Cir.
1974); Maiman v. IRS, 81 AFTR 2d 98–1456, at 98–1458, 98–
1 USTC par. 50,324, at 83,787 (E.D.N.Y. 1998), affd. without
published opinion 182 F.3d 900 (2d Cir. 1999).
8 It has been held that actual receipt of a notice of disallowance is not required so long as
the notice of disallowance was mailed to the taxpayer by certified mail. See Rosser v. United
States, 9 F.3d 1519 (11th Cir. 1993); Maiman v. IRS, 81 AFTR 2d 98–1456, at 98–1457, 98–
1 USTC par. 50,324, at 83,786 (E.D.N.Y. 1998), affd. without published opinion 182 F.3d 900
(2d Cir. 1999).
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(422) BRADY v. COMMISSIONER 431
Even if we were to assume arguendo that petitioner was
misled by the Appeals Office letter or that the notices sent
in November 2004 were defective and that petitioner had 2
years from the December 29, 2005, notice of disallowance in
which to file a refund suit, it would be of no benefit to him.
Petitioner acknowledged receiving the December 29, 2005,
notice of disallowance, which was sent to him by certified
mail. Petitioner did not file a valid refund suit regarding his
disallowed claims for credit or refund within the 2-year
period after December 29, 2005. 9 Petitioner neither
requested a CDP hearing nor filed the instant proceeding
within 2 years from the date of the December 29, 2005,
notice. Thus, any suit or judicial proceeding challenging the
disallowance of petitioner’s refund claims was barred in 2008
when he requested a CDP hearing and filed his petition in
this case.
Section 6514(a) provides:
SEC. 6514(a). CREDITS OR REFUNDS AFTER PERIOD OF LIMITATION.—A
refund of any portion of an internal revenue tax shall be considered erro-
neous and a credit of any such portion shall be considered void—
* * * * * * *
(2) DISALLOWANCE OF CLAIM AND EXPIRATION OF PERIOD FOR FILING
SUIT.—In the case of a claim filed within the proper time and disallowed
by the Secretary, if the credit or refund was made after the expiration
of the period of limitation for filing suit, unless within such period suit
was begun by the taxpayer.
Section 6514 emphasizes the point that refunds and credits
that do not comply with the applicable limitations period
‘‘shall be considered erroneous’’. United States v. Brockamp,
519 U.S. 347, 351 (1997). The strict terms of sections 6532
and 6514, limiting refunds or credits for overpayments, pre-
clude the relief petitioner seeks. 10 We hold that because peti-
tioner failed to initiate a timely judicial action to contest the
disallowance of his claims for credit or refund within the
period of limitations as provided in section 6532, he is now
9 Whether petitioner might have subjectively intended his previously mentioned multifaceted
suit in the District Court, which was filed in March 2007, to include a refund claim is irrelevant
because the District Court held that petitioner failed to establish that he had met the jurisdic-
tional requirements for a refund suit. The District Court’s dismissal for lack of jurisdiction was
affirmed and has become final.
10 The parties have not cited any cases where this Court has previously considered the appli-
cation of secs. 6532 and 6514 to bar the use of a credit in the context of a sec. 6330 proceeding,
and this issue appears to be one of first impression.
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432 136 UNITED STATES TAX COURT REPORTS (422)
barred by section 6514(a) from receiving any such credit
toward his unpaid 2005 liability.
We hold that respondent may proceed with the collection
action specified in the notice of determination. In reaching
the conclusions described herein, we have considered all
arguments made by petitioner, and, to the extent not men-
tioned above, we find them to be irrelevant or without merit.
To reflect the foregoing,
Decision will be entered for respondent.
f
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