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Профессиональный Документы
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2010-140
MEMORANDUM OPINION
periods ending December 31, 2001, and March 31, 2002 (2007 notice
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2004 tax year and with respect to section 6672 penalties for
quarterly periods ending December 31, 2001, and March 31, 2002;
in gross income for their 2004 tax year; (3) if petitioners may
for the quarterly periods ending December 31, 2001, and March 31,
Background
1
Unless otherwise indicated, all Rule references are to the
Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code, as amended. All
amounts are rounded to the nearest whole dollar.
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had the authority to hire and fire Stripco’s employees and direct
corporate checks.
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September 30, and December 31, 2001, and March 31, 2002, based
2
The proposed penalties included penalties for quarterly
periods ending June 30 and Sept. 30, 2001. Those periods are not
at issue in the instant case.
3
Mrs. Swanton’s Letter 1153 was sent to 1167 W. Lake Ave.,
New Carlisle, OH. Mr. Swanton’s Letter 1153 was addressed to
1167 Lake Ave., New Carlisle, OH. The Lake Ave. address listed
for Mr. Swanton is the address that was stipulated by the parties
as petitioners’ address at the time of filing, as well as the
address given to respondent by Mrs. Swanton on Feb. 23, 2000,
during an interview with regard to the trust fund recovery
penalties.
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ending December 31, 2001, and March 31, 2002. Respondent sent
Individual Income Tax Return, for their 2004 tax year on which
tax of $76,730 for their 2004 tax year. Petitioners had paid
$75,269 of tax shown on their 2004 return (unpaid 2004 income tax
liability).4
notice of levy.
4
The $75,269 was summarily assessed pursuant to sec.
6201(a)(1). A notice of deficiency was not required before
assessment. Id.
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stated that they were not liable for the trust fund recovery
court during the time in issue and that they would like to get
included in gross income for their 2004 tax year, and they
Coronado that Mr. Swanton had suffered from some type of illness
letter dated February 28, 2008, Ms. Coronado sustained the 2007
notice of levy.
periods ending December 31, 2001, and March 31, 2002, of $45,568,
owed $4,918 for the quarterly period ending December 31, 2001,
and $1,195 for the quarterly period ending March 31, 2002.5
Discussion
5
Except for the balance due, neither petitioners nor
respondent offered details regarding the abatement. However, as
noted above, Stripco laid off most of its employees upon filing
for bankruptcy on Nov. 8, 2001.
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6330(c)(3).
a notice of intent to levy for the same tax and tax period may
properly in issue, the Court will review the matter de novo; but
That liability was the result of the seizure of $289,017 from Mr.
IRA. See Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115
funds were improperly included in gross income for their 2004 tax
petitioners are liable for the unpaid 2004 income tax liability.
6
Generally, early withdrawals from IRAs are subject to a 10-
percent penalty tax. Sec. 72(t). However, sec. 72(t) does not
apply to distributions where funds are levied upon by the
Commissioner pursuant to sec. 6331 as occurred in the instant
case. Sec. 72(t)(2)(A)(vii).
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quarterly periods ending December 31, 2001, and March 31, 2002.
7
Because the assessments against petitioners were trust fund
recovery penalties, respondent would not have issued and mailed a
notice of deficiency. See sec. 6212(a).
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mailed Mrs. Swanton the 2003 notice of levy with respect to the
that she received the 2003 notice of levy, or that it was sent to
notice.
time, even after the case has been tried and briefed. Romann v.
supra.
1153 during 2002 and the 2003 notice of levy.8 Mrs. Swanton
8
Respondent mailed Mrs. Swanton a Letter 1153 dated Oct. 23,
2002 addressed to 1167 W. Lake Ave. The parties stipulated that
Mrs. Swanton’s Letter 1153 was returned unclaimed and that
petitioners’ address at the time of filing the instant case was
1167 Lake Ave. Additionally, during a February 2000 interview
with respondent regarding the trust fund recovery penalties, Mrs.
Swanton listed her address as 1167 Lake Ave. We need not decide
whether Mrs. Swanton’s Letter 1153 was the first pre-levy notice
sent to her last known address because, as stated above, Mrs.
Swanton does not dispute that she received the 2003 notice of
levy, or that it was sent to her last known address.
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result in a lien setting), affd. 239 Fed. Appx. 325 (9th Cir.
penalties.
9
An equivalent hearing is an administrative hearing provided
to a taxpayer who fails to make a timely request for a collection
hearing with the Commissioner’s Appeals Office. Sec. 301.6330-
1(i)(1), Proced & Admin. Regs. An equivalent hearing is
conducted similarly to a regular collection hearing; however, it
does not result in a notice of determination, but rather a
decision letter. Id.
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supra at 318. Mr. Swanton did not contest his liability for the
collect, account for, and pay over income and employment taxes of
10
Respondent mailed separate Letters 1153 to petitioners.
Mr. Swanton’s Letter 1153 was addressed to 1167 Lake Ave.
However, a copy of certified mailing for the Letters 1153 was
provided only as to Mrs. Swanton.
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321.
11
Sec. 6672(b)(1) and (2) provides: (1) That no penalty may
be imposed unless the Secretary notifies the taxpayer in person
or in writing by mail to the taxpayer’s last known address that
the taxpayer shall be subject to assessment for such penalty; and
(2) that in-person delivery or mailing of the notice must precede
any notice and demand for payment of the trust fund recovery
penalty by at least 60 days. Mason v. Commissioner, 132 T.C. 301
(2009); Hickey v. Commissioner, T.C. Memo. 2009-2. Actual
receipt of the Letter 1153 is not required in order to prove that
the Commissioner provided the required preliminary notice.
Hickey v. Commissioner, supra.
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Kinnie v. United States, 994 F.2d 279, 283 (6th Cir. 1993)
12
Absent stipulation to the contrary, any appeal of the
instant case would be to the Court of Appeals for the Sixth
Circuit. The Tax Court follows the law of the court to which an
appeal would lie if that law is on point. Golsen v.
Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th
Cir. 1971).
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conclude that Mr. Swanton is liable for the trust fund recovery
discretion. Olsen v. United States, 414 F.3d 144, 153 (1st Cir.
generally cannot raise an issue in this Court that they did not