Judges: WELLS
Attorneys: Martin David Hoyle, Pro se. Beth A. Nunnink , for respondent.
Filed: May 23, 2011
Latest Update: Nov. 21, 2020
Summary: MARTIN DAVID HOYLE, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT * Docket No. 7217–04L. Filed May 23, 2011. After this Court’s remand of the instant case for R’s Appeals Office to determine, pursuant to I.R.C. sec. 6330(c)(1), whether R properly sent P a notice of deficiency, R seeks, by way of a motion in limine, to have the administrative record from the remand hearing admitted into evidence. P objects on three grounds: (1) The matters in the record on remand were not considered
Summary: MARTIN DAVID HOYLE, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT * Docket No. 7217–04L. Filed May 23, 2011. After this Court’s remand of the instant case for R’s Appeals Office to determine, pursuant to I.R.C. sec. 6330(c)(1), whether R properly sent P a notice of deficiency, R seeks, by way of a motion in limine, to have the administrative record from the remand hearing admitted into evidence. P objects on three grounds: (1) The matters in the record on remand were not considered a..
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MARTIN DAVID HOYLE, PETITIONER v. COMMISSIONER
OF INTERNAL REVENUE, RESPONDENT *
Docket No. 7217–04L. Filed May 23, 2011.
After this Court’s remand of the instant case for R’s
Appeals Office to determine, pursuant to I.R.C. sec. 6330(c)(1),
whether R properly sent P a notice of deficiency, R seeks, by
way of a motion in limine, to have the administrative record
from the remand hearing admitted into evidence. P objects on
three grounds: (1) The matters in the record on remand were
not considered at the original hearing; (2) R’s counsel and the
settlement officer engaged in improper ex parte contact; and
(3) documents in the administrative record on remand are
inadmissible hearsay. During the pendency of the instant
case, R refiled the notice of Federal tax lien (NFTL) in issue.
P moves to dismiss respondent’s refiled NFTL. Held: At the
hearing on remand, R’s settlement officer was not limited to
a consideration of matters considered by the Appeals officer in
the original administrative hearing. Held, further, R’s counsel
and the settlement officer did not engage in prohibited ex
parte contact. Held, further, the administrative record, once it
has been authenticated, is admissible to show information
available to the Appeals Office during the administrative
consideration of petitioner’s case on remand. Until documents
from that record are offered to prove the truth of the matters
asserted therein, it is unnecessary to rule on P’s hearsay
objection. Held, further, R may refile the NFTL.
Martin David Hoyle, pro se.
Beth A. Nunnink, for respondent.
SUPPLEMENTAL OPINION
WELLS, Judge: The instant case is before the Court on
respondent’s motion in limine and petitioner’s motion to dis-
miss respondent’s lien. 1 We must decide: (1) Whether the
* This Opinion supplements Hoyle v. Commissioner, 131 T.C. 197 (2008).
1 Petitioner has filed numerous other motions, including a motion to dismiss, to bar evidence
or to set a time limit for response filed on Dec. 15, 2008; motion to dismiss and to bar evidence
filed on Mar. 19, 2009; motion for summary judgment filed on Oct. 5, 2009; and motion to dis-
Continued
463
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464 136 UNITED STATES TAX COURT REPORTS (463)
proposed Supplemental Stipulation of Facts and exhibits
should be admitted into evidence; and (2) whether
respondent may refile a notice of Federal tax lien (NFTL)
during the pendency of these proceedings.
Background
Many of the relevant facts are set forth in our prior
Opinion in the instant case, Hoyle v. Commissioner, 131 T.C.
197 (2008) (prior Opinion), and are incorporated by reference.
Additionally, some of the facts discussed in this Opinion are
taken from the parties’ moving papers for the purpose of
ruling on respondent’s motion in limine and petitioner’s
motions.
At the time he filed the petition, petitioner resided in Lou-
isiana.
The record contains a notice of deficiency dated March 28,
1996, for petitioner’s 1993 tax year. On August 26, 1996,
respondent assessed the amounts stated in the notice of defi-
ciency.
On September 12, 2002, respondent sent petitioner a
Notice of Federal Tax Lien Filing and Your Right to a
Hearing Under IRC 6320 with respect to petitioner’s unpaid
tax liability for 1993. On or around September 17, 2002,
respondent filed an NFTL in Jefferson Parish, Louisiana
(original NFTL). The original NFTL indicated, on its face, that
unless refiled by September 25, 2006, the original NFTL
would operate as a certificate of release of lien as defined in
section 6325(a). 2 Petitioner timely requested a review of the
original NFTL with respondent’s Appeals Office.
On March 31, 2004, respondent’s Appeals Office sent to
petitioner a notice of determination upholding the original
NFTL. Petitioner timely filed a petition with this Court.
On December 3, 2008, we issued our prior Opinion. In our
prior Opinion we stated:
we are unable to ascertain the basis for the Appeals officer’s verification
that all requirements of applicable law were met. Consequently, we will
remand this case to the Appeals Office for it to clarify the record as to
miss and to bar evidence filed on Oct. 5, 2009. These motions contain many of the same argu-
ments petitioner made in his objection to respondent’s motion in limine. On the basis of our
holding in the instant Opinion, we will deny petitioner’s motions.
2 Unless otherwise indicated, section references are to the Internal Revenue Code of 1986, as
amended, and Rule references are to the Tax Court Rules of Practice and Procedure.
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(463) HOYLE v. COMMISSIONER 465
what the Appeals officer relied upon in determining that the notice of defi-
ciency was properly sent to petitioner. [Hoyle v. Commissioner, supra at
205; fn. ref. omitted.]
In a footnote, we noted: ‘‘We are remanding this case in order
for the Appeals Office to ‘examine underlying documents’ and
make a record of what was relied upon in making the deter-
mination that the notice of deficiency was ‘properly sent’.’’ Id.
n.7 (quoting Chief Counsel Notice CC–2006–19 (Aug. 18,
2006)). On December 19, 2008, we issued an order stating
that ‘‘this case is remanded to respondent’s Office of Appeals
for the purpose of clarifying the record regarding the issue of
what the Appeals officer relied upon in determining that the
notice of deficiency was properly sent to petitioner.’’
On December 22, 2008, respondent’s counsel Beth Nunnink
(Ms. Nunnink) sent a letter to Supervisory Revenue Officer
Clifford Whitely (Mr. Whitely) regarding the instant case. In
that letter, Ms. Nunnink stated that she was forwarding the
administrative file to which she had added a copy of the U.S.
Postal Service certified mail list dated March 28, 1996, which
lists notices of deficiency sent to petitioner and Wayne
Leland, to whom petitioner had delegated his power of
attorney (certified mail list). Petitioner was sent a copy of the
December 22, 2008, letter. On January 20, 2009, Settlement
Officer Magee (Ms. Magee) was assigned to the case.
Ms. Nunnink and Ms. Magee had several conversations
after the remand of this case to respondent’s Appeals Office.
On January 20, 2009, Ms. Magee and Ms. Nunnink conferred
by telephone and email regarding the case. In those commu-
nications Ms. Nunnink advised Ms. Magee to give petitioner
a face-to-face conference and to decide four issues: (1)
Whether the notice of deficiency was sent to petitioner’s last
known address; (2) whether the assessment was valid; (3)
whether petitioner could raise the underlying liability on the
ground that he had not received the notice of deficiency; and
(4) the items relied on to make the foregoing determinations.
On January 23, 2009, Ms. Magee advised Ms. Nunnink
that she would have a face-to-face conference with petitioner
on February 19, 2009. Ms. Nunnink advised Ms. Magee that
petitioner’s amended return for his 1993 tax year had been
admitted into evidence at trial. Ms. Magee and Ms. Nunnink
conferred regarding status reports to the Court. Ms. Nunnink
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466 136 UNITED STATES TAX COURT REPORTS (463)
reviewed Ms. Magee’s draft supplemental notice of deter-
mination to ascertain whether all issues the Court had
required to be addressed were included in Ms. Magee’s deter-
mination and that all explanations were complete.
On February 23, 2009, Ms. Magee asked Ms. Nunnink a
legal question: If petitioner had previously received a notice
of deficiency, could he still raise his underlying tax liability
as an issue now? After some research on the subject, Ms.
Nunnink advised Ms. Magee that if petitioner had received
a notice, he could no longer contest his underlying liability.
On February 19, 2009, Ms. Magee discovered that the re-
filing date stated on the original NFTL had passed. Through-
out several conversations Ms. Nunnink kept Ms. Magee
informed about the refiling of the NFTL, and they discussed
who should speak with petitioner regarding the refiling. On
March 3, 2009, respondent filed Form 12474–A, Revocation of
Certificate of Release of Federal Tax Lien, with the Clerk of
Court of Jefferson Parish, Louisiana. Immediately thereafter,
respondent refiled the NFTL for petitioner’s 1993 tax year
with the Clerk of Court of Jefferson Parish, Louisiana.
On June 26, 2009, Ms. Magee issued a Supplemental
Notice of Determination Concerning Collection Action(s)
Under Section 6320 and/or 6330.
On March 19, 2010, respondent sent to petitioner a supple-
mental stipulation of facts to which was attached the record
from the hearing on remand with Ms. Magee, including the
certified mail list. Petitioner raised objections to the stipula-
tion, and on May 3, 2010, respondent filed the instant motion
in limine.
Discussion
Respondent contends that we should rule in limine that
the following documents will be admitted into the record: (1)
The original administrative record as submitted into evi-
dence at trial, before the issuance of our prior Opinion
remanding the case to respondent’s Appeals Office; (2) sev-
eral previous filings made with the Court; 3 and (3) several
3 These filings include the petition filed on Apr. 30, 2004, the answer filed on June 29, 2004,
respondent’s motion for summary judgment filed on Sept. 26, 2006, petitioner’s response to re-
spondent’s motion for summary judgment filed on Oct. 25, 2006, petitioner’s pretrial memo-
randum filed on May 21, 2007, respondent’s opening brief filed on Aug. 6, 2007, petitioner’s an-
swering brief filed on Sept. 20, 2007, respondent’s reply brief filed on Nov. 14, 2007, and our
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(463) HOYLE v. COMMISSIONER 467
documents that Ms. Magee created or considered on remand
(administrative record on remand). Evidence previously
admitted at trial, like the trial transcript itself, is already in
the record, and we therefore need not address its admissi-
bility. The pleadings, motions, briefs, etc., previously filed
with the Court also are part of the record in this case, and
unless and until they are offered into evidence for a par-
ticular purpose, we need not address their admissibility as
evidence. As to the administrative record on remand,
respondent contends that it is admissible under the business
records exception to the hearsay rule. See Fed. R. Evid.
803(6). 4
Petitioner contends that the administrative record on
remand is not admissible into evidence because the matters
therein were not considered at the original administrative
hearing before remand, that Ms. Nunnink and Ms. Magee
had improper ex parte contact regarding the hearing on
remand, and that the documents in the administrative record
on remand, specifically a certified mail list showing the
mailing of the notice of deficiency in issue to petitioner and
to his representative, are inadmissible hearsay on account of
a lack of trustworthiness. See id.
A taxpayer is entitled to a single hearing under section
6320 with respect to the year to which the unpaid liability
relates. Sec. 6320(b)(2); Freije v. Commissioner, 131 T.C. 1,
5 (2008), affd. 325 Fed. Appx. 448 (7th Cir. 2009); see also
Kelby v. Commissioner, 130 T.C. 79, 86 (2008) (similar
holding for section 6330 cases). When this Court remands a
case to the Appeals Office, the hearing on remand is a
supplement to the taxpayer’s original section 6320 hearing.
Kelby v. Commissioner, supra at 86; see also Olsen v. United
States, 414 F.3d 144, 155 (1st Cir. 2005) (‘‘In the event the
administrative record is found inadequate for judicial review,
‘the proper course, except in rare circumstances, is to remand
to the agency for additional investigation or explanation’.’’
(quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744
(1985))). The hearing on remand provides the parties with
the opportunity to complete the initial section 6320 hearing
while preserving the taxpayer’s right to receive judicial
prior Opinion in the instant case, Hoyle v. Commissioner, 131 T.C. 197 (2008).
4 Proceedings in the Tax Court are generally governed by the Federal Rules of Evidence. Rule
143(a).
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468 136 UNITED STATES TAX COURT REPORTS (463)
review of the ultimate administrative determination. Kelby v.
Commissioner, supra at 86; see also Wadleigh v. Commis-
sioner, 134 T.C. 280, 299 (2010) (similar result in a section
6330 case). A corollary to the fact that the taxpayer may
receive only one hearing is that the Commissioner’s Appeals
Office makes a single determination. Kelby v. Commissioner,
supra at 86. When this Court remands a case to the Appeals
Office and it comes back to us after a supplemental deter-
mination is issued, we review the supplemental determina-
tion. Id.
We remanded the instant case for the Appeals Office to
determine, as a part of its verification ‘‘that the requirements
of any applicable law * * * have been met’’, sec. 6330(c)(1),
whether a notice of deficiency was properly mailed to peti-
tioner. If the notice of deficiency was not properly mailed, the
assessment of tax would be invalid. See sec. 6213(a); Hoyle
v. Commissioner, 131 T.C. at 205. The act of mailing may be
proven by documentary evidence of mailing. Coleman v.
Commissioner, 94 T.C. 82, 91 (1990). We have held that exact
compliance with Postal Service Form 3877 mailing proce-
dures raises a presumption of official regularity in favor of
the Commissioner and is sufficient, absent evidence to the
contrary, to establish that a notice of deficiency was properly
mailed. Id.; see also United States v. Zolla, 724 F.2d 808, 810
(9th Cir. 1984). Ms. Magee was not limited to what the
original Appeals officer considered. She was required to con-
sider, pursuant to this Court’s order of remand, whether a
notice of deficiency had been properly sent to petitioner.
Hoyle v. Commissioner, supra at 205; see also Kelby v.
Commissioner, supra at 86. The administrative record on
remand contains such evidence in the form of a certified mail
list. The certified mail list appears to include the same
information found on Postal Service Form 3877. The
administrative record on remand and the certified mail list
are necessary for our consideration of the supplemental
determination by respondent’s Appeals Office on remand and
will at least be admitted into evidence for the limited pur-
pose (as allowed by rule 105 of the Federal Rules of Evi-
dence) of showing the proceedings on remand—a purpose for
which they are not, strictly speaking, offered to prove the
truth of the matter asserted therein. Consequently, the
administrative record on remand shall be admitted as long as
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(463) HOYLE v. COMMISSIONER 469
it is authenticated pursuant to rule 901 of the Federal Rules
of Evidence. If documents from the administrative record on
remand are offered at trial for the additional purpose of
proving the truth of the matters asserted therein, 5 hearsay
and reliability objections can be addressed at that time.
Petitioner cites the American Bar Association (ABA) Model
Code of Judicial Conduct and the Tennessee Code of Judicial
Conduct, Tennessee Supreme Court rule 10, for the propo-
sition that communications between Ms. Nunnink and Ms.
Magee were impermissible. Petitioner’s reliance on the ABA
Model Code and the Tennessee code is misplaced. They do
not govern the matters before us and are not applicable to
the instant case.
The Internal Revenue Service Restructuring and Reform
Act of 1998 (RRA), Pub. L. 105–206, sec. 1001(a)(4), 112 Stat.
689, directed the Commissioner to develop a plan to prohibit
ex parte communications between Appeals Office employees
and other Internal Revenue Service (IRS) employees that
appear to compromise the independence of the Appeals offi-
cers:
The Commissioner of Internal Revenue shall develop and implement a
plan to reorganize the Internal Revenue Service. The plan shall—
* * * * * * *
(4) ensure an independent appeals function within the Internal Revenue
Service, including the prohibition in the plan of ex parte communications
between appeals officers and other Internal Revenue Service employees to
the extent that such communications appear to compromise the independ-
ence of the appeals officers.
To fulfill that congressional mandate to ensure an inde-
pendent Appeals Office, the Commissioner issued Rev. Proc.
2000–43, 2000–2 C.B. 404, which is effective for communica-
tions between employees of the Appeals Office and other IRS
employees taking place after October 23, 2000. See Drake v.
Commissioner, 125 T.C. 201, 208 (2005); Harrell v. Commis-
sioner, T.C. Memo. 2003–271. According to Rev. Proc. 2000–
43, supra, ex parte communications are communications that
take place between the Appeals Office and another IRS office
without the participation of the taxpayer or the taxpayer’s
5 See, e.g., Sego v. Commissioner, 114 T.C. 604, 610–611 (2000) (relying on a copy of the notice
and Postal Service Form 3877 to conclude, ‘‘[o]n the preponderance of the evidence, * * * that
the statutory notice of deficiency was sent’’).
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470 136 UNITED STATES TAX COURT REPORTS (463)
representative. Drake v. Commissioner, supra at 209. An
Appeals officer may not engage in ex parte discussions of the
strength and weakness of the issues of a case that would
appear to compromise the Appeals officer’s independence. Id.
The Appeals officer must give the taxpayer an opportunity to
participate in any discussions concerning matters that are
not ministerial, administrative, or procedural. Id.; Rev. Proc.
2000–43, sec. 3, Q&A–6, 2000–2 C.B. at 406. However, Rev.
Proc. 2000–43, supra, by its terms applies to communications
between an attorney in the Office of Chief Counsel and an
Appeals officer only in nondocketed cases; i.e., those cases
where the taxpayer has not yet filed a petition with the Tax
Court. Id. sec. 2, sec. 3, Q&A–11, 2000–2 C.B. at 404, 406–
407. As the instant case is a docketed case, Rev. Proc. 2000–
43, supra, does not apply directly to communications of Ms.
Nunnink with Ms. Magee.
During 2007 the IRS Office of Chief Counsel issued guide-
lines covering communications between IRS Chief Counsel
attorneys and Appeals officers when a case is remanded by
the Tax Court. Chief Counsel Notice CC–2007–006 (Feb. 23,
2007). That notice provided three guidelines to Chief Counsel
attorneys: (1) Chief Counsel attorneys are to prepare a writ-
ten memorandum explaining why the case was remanded
and noting any special instructions in the order of remand
and should provide a copy of the memorandum to the tax-
payer; the memorandum is not to discuss the credibility of
the taxpayer or the accuracy of the facts presented by the
taxpayer; (2) a Chief Counsel attorney may provide legal
advice to an Appeals officer as long as that attorney did not
give legal advice to an originating function (e.g., collection)
on the same issue in the same case; the legal advice should
not opine on the ultimate legal issues; and (3) the Chief
Counsel attorney who is handling the docketed case should
review the supplemental notice of determination to ensure
that it complies with the Tax Court’s order. Chief Counsel
Notice CC–2007–006 (Feb. 23, 2007) was superseded and
incorporated into Chief Counsel Notice CC–2009–010 (Feb.
13, 2009), which expired on May 15, 2009. However, the
procedural aspects of these Chief Counsel notices have been
incorporated into the Internal Revenue Manual (IRM) as of
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(463) HOYLE v. COMMISSIONER 471
March 11, 2009. 6 See IRM pt. 8.22.2.3 (Mar. 11, 2009). One
or more of these versions of the guidelines were in force
throughout the period during which Ms. Magee considered
petitioner’s case on remand.
We conclude that the conversations between Ms. Nunnink
and Ms. Magee were solely procedural, ministerial, or
administrative. Ms. Nunnink did not opine on the ultimate
issues or discuss petitioner’s credibility. Additionally, Ms.
Nunnink did not question petitioner’s motives, suggest terms
under which an offer-in-compromise would be accepted, or
recommend that respondent secure all of petitioner’s assets.
See Drake v. Commissioner, 125 T.C. at 209 (improper ex
parte communication where memorandum to Appeals officer
questioned motives of taxpayer’s counsel); Indus. Investors v.
Commissioner, T.C. Memo. 2007–93 (cover letter to Appeals
officer was improper ex parte communication because letter
told Appeals officer not to consider CDP hearing for pre-
viously filed lien, recommended that Government secure all
assets owned by taxpayer, and suggested terms under which
offer-in-compromise would be accepted). Rather, Ms.
Nunnink provided legal advice on specific issues, such as
6 In relevant part, Internal Revenue Manual pt. 8.22.2.3 (Mar. 11, 2009) states:
6. In Chief Counsel Notice (CC–2007–006), the IRS provided guidance on the application of the
ex parte rules to communications between Chief Counsel attorneys and the hearing office when
a CDP case is remanded by the Tax Court.
7. The following guidelines apply when a CDP case is remanded. The Counsel attorney working
the docketed case should prepare a written memorandum addressed to the Office of Appeals ex-
plaining:
A. the reasons why the court remanded the case to Appeals,
B. any special requirements in the order (e.g., whether and to what extent to hold a new con-
ference and whether the case must be reassigned to a new hearing officer),
C. what issues the court has ordered Appeals to address on remand.
Note:
The memorandum should not discuss the credibility of the taxpayer or the accuracy of the facts
presented by the taxpayer.
8. A request by a hearing officer for legal advice in connection with the remanded CDP case
may be handled by the Counsel attorney who is handling the docketed Tax Court case, so long
as that attorney did not give legal advice to an originating function (e.g., Collection) concerning
the same issue in the same case. If the Counsel attorney provided such advice, Counsel should
assign the request to another Counsel attorney who has not previously provided advice to a
Service office concerning the same issue in the same case. Counsel should carefully tailor any
legal advice to only answer the legal questions posed by Appeals, and the advice should not
opine on how you should ultimately decide the issues in the Supplemental NOD. Consistent
with Q&A11 of Rev. Proc. 2000–43, the advice does not have to be shared with the taxpayer
or his representative at the time it is rendered. Also, neither the taxpayer nor his representative
have a right to participate in any discussions between Appeals and Counsel with respect to the
advice.
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472 136 UNITED STATES TAX COURT REPORTS (463)
whether petitioner could challenge the underlying liability if
he had received a notice of deficiency. We do not believe that
such legal advice constitutes prohibited ex parte communica-
tions that should have been shared with petitioner.
Ms. Nunnink’s review of Ms. Magee’s draft supplemental
notice of determination was not an impermissible ex parte
communication. Ms. Nunnink’s comments were meant to
ensure that the supplemental notice of determination on
remand complied with our order of December 19, 2008. For
example, Ms. Nunnink asked Ms. Magee to clarify her posi-
tion in the supplemental notice of determination and asked
her to attach additional documents.
Additionally, Ms. Nunnink’s inclusion of the certified mail
list in the administrative record on remand was ministerial,
procedural, or administrative. See Rev. Proc. 2000–43, sec. 3,
Q&A–6. We remanded this case to the Appeals Office specifi-
cally for the purpose of having it ‘‘[clarify] the record
regarding the issue of what the Appeals officer relied upon
in determining that the notice of deficiency was properly sent
to petitioner.’’ Given our mandate on remand, Ms. Nunnink’s
actions were not prohibited ex parte communications. Evi-
dence of a certified mail list is precisely what the Court
sought by remand. Ms. Nunnink’s actions in finding the cer-
tified mail list and placing it in the administrative record on
remand do not ‘‘appear to compromise the independence of
the appeals [officer].’’ See RRA sec. 1001(a)(4). Moreover, peti-
tioner was sent a copy of the letter to Mr. Whitely, which
gave him notice of the addition of the certified mail list to the
administrative record on remand and allowed him to raise
that issue with Ms. Magee.
Accordingly, we conclude that Ms. Nunnink and Ms. Magee
did not engage in prohibited ex parte conduct or communica-
tions.
Respondent has provided notice to petitioner that he seeks
to introduce the administrative record on remand into evi-
dence. Petitioner objects to the admission into evidence of the
administrative record on remand on the basis that it is
inadmissible hearsay that lacks trustworthiness.
We need not rule on petitioner’s hearsay objection at this
time because the initial consideration by this Court of the
administrative record on remand will be for the limited pur-
pose, see Fed. R. Evid. 105, of establishing what information
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(463) HOYLE v. COMMISSIONER 473
was available to the Appeals Office when preparing the
supplemental notice of determination; and, for that purpose,
admission of the administrative record on remand for the
truth of the matters contained therein is not necessary. We
note that if respondent offers documents from that record at
trial for the truth of the matters contained therein, petitioner
may make any appropriate objections at that time. We also
note that, absent stipulation of the administrative record on
remand, respondent must authenticate it at trial.
Petitioner also contends that respondent may not refile the
NFTL. Respondent contends that he may refile the NFTL
pursuant to section 6325(f).
Pursuant to section 6321, if a person liable for a tax fails
to pay it after a demand for payment is made, a lien arises
in favor of the United States upon all property and rights to
property belonging to such person for the unpaid amount,
including interest. The lien arises when the tax is assessed
and continues until the underlying liability is satisfied or
becomes unenforceable by reason of lapse of time. Sec. 6322.
Section 6323 authorizes the Commissioner to file notice of
that lien; i.e., an NFTL. The NFTL establishes the lien’s pri-
ority over subsequent buyers of the property, holders of secu-
rity interests in the property, judgment-lien creditors, and
mechanic’s lienholders. See sec. 6323(a).
Generally, an NFTL must be refiled during the 1-year
period ending 10 years and 30 days after the date of assess-
ment (the refiling period). Sec. 6323(g). If the Commissioner
fails to refile the NFTL during the refiling period, the NFTL
generally is not effective after the expiration of that period
against any person with an interest in property subject to
the lien. Sec. 301.6323(g)–1(a)(3), Proced. & Admin. Regs.
However, section 301.6323(g)–1(a)(3)(i), Proced. & Admin.
Regs., provides an exception to this general rule: the failure
to refile the NFTL during the refiling period will not affect the
effectiveness of the NFTL with respect to property that is the
subject matter of a suit filed before the expiration of the re-
filing period to which the Government is a party. 7 Even if
7 On Apr. 4, 2011, the IRS released final regulations amending portions of sec. 301.6323(g)–
1(a), Proced. & Admin. Regs. T.D. 9520, 2011–18 I.R.B. 730. Those amendments apply to any
NFTL filed on or after Apr. 4, 2011. Under the amended regulations, the release of a Federal
tax lien on property that is the subject of litigation to which the Government is a party will
not affect the Government’s priority in such property as long as the suit was commenced before
Continued
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474 136 UNITED STATES TAX COURT REPORTS (463)
the NFTL is not refiled during the refiling period, provided
the lien remains in existence the Commissioner may still file
a new NFTL, which will be effective from the date it is filed.
Sec. 301.6323(g)–1(a)(4), Proced. & Admin. Regs.
The Commissioner may withdraw an NFTL before the
underlying tax is paid if it is determined that: (1) The NFTL
was prematurely filed or otherwise not in accordance with
IRS procedures; (2) the taxpayer has agreed to an installment
agreement; (3) withdrawal of the NFTL will facilitate collec-
tion; or (4) withdrawal of the NFTL is in the best interests of
the taxpayer and the United States. Sec. 6323(j)(1). With-
drawal does not affect the underlying lien. Sec. 301.6323(j)–
1(a), Proced. & Admin. Regs.
The Commissioner must issue a certificate releasing a lien
within 30 days after he determines that the entire tax
liability (including interest) has been paid or becomes legally
unenforceable, or if the taxpayer posts an acceptable bond.
Sec. 6325(a). If the Commissioner determines that a certifi-
cate of release was issued improvidently or erroneously and
if the period of limitations for collecting the underlying
liability has not expired, the Commissioner may revoke the
certificate of release and reinstate the lien. Sec. 6325(f)(2). A
certificate of release is not conclusive proof that the liability
is extinguished. See Boyer v. Commissioner, T.C. Memo.
2003–322. The underlying tax liability that is the subject of
the NFTL remains until the tax is paid in full or the period
of limitations on collection expires. See id.; sec. 301.6325–
1(a)(1), Proced. & Admin. Regs.
Generally, the Commissioner has 10 years from the date of
assessment to collect the tax due. Sec. 6502(a). However, if
the taxpayer requests an administrative review of an NFTL,
the period of limitations is suspended during the period of
that hearing, and appeals therein. Secs. 6320(c), 6330(e).
On August 26, 1996, respondent assessed the tax in issue.
Petitioner timely requested an administrative review of the
original NFTL, and subsequently, in the instant case,
requested judicial review of that proceeding. As a decision in
the instant case has not yet become final, the period of
limitations on collection remains suspended. See secs.
6320(c), 6330(e). The original NFTL indicated that unless
the date the lien was released. Sec. 301.6323(g)–1(a)(3)(i), Proced. & Admin. Regs.
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(463) HOYLE v. COMMISSIONER 475
refiled by September 25, 2006, it would constitute a certifi-
cate of release of lien. The NFTL was not refiled by that date.
On March 3, 2009, respondent filed a revocation of certificate
of release of Federal tax lien and immediately thereafter
refiled the NFTL. Consequently, respondent refiled the NFTL
within the limitations period for collection.
Respondent’s lien for the underlying tax reflected in the
NFTL remains in existence because the period of limitations
on collections has been suspended by the instant proceedings.
See secs. 6322, 6330(e). The NFTL was refiled with the Clerk
of Court of Jefferson Parish, Louisiana, in accordance with
section 6323(f). 8 See La. Rev. Stat. Ann. sec. 52:52 (2004).
Consequently, we conclude that respondent’s refiling of the
NFTL is not grounds for dismissal of the instant case in peti-
tioner’s favor. Accordingly, we will deny petitioner’s motion
to dismiss respondent’s lien.
To reflect the foregoing,
An appropriate order will be issued.
f
8 Petitioner does not contend that respondent failed to follow proper procedures in refiling the
NFTL.
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