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John A. Hartmann v. Commissioner of Internal Revenue

March 22, 2011

JOHN A. HARTMANN, APPELLANT
v.
COMMISSIONER OF INTERNAL REVENUE



Appeal from the United States Tax Court Tax Court No. 09-27758 (Tax Court Judge: Honorable Robert N. Armen,Jr.)

Per curiam.

PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) February 15, 2011

Before: RENDELL, CHAGARES and ALDISERT, Circuit Judges

OPINION OF THE COURT

John A. Hartmann appeals from the decision of the United States Tax Court granting the Commissioner of Internal Revenue's ("IRS") motion for summary judgment in this action to collect unpaid taxes. Because Hartmann's arguments on appeal do not demonstrate the existence of a genuine issue of material fact, or that the IRS is not entitled to judgment as a matter of law, we will affirm the decision of the Tax Court.

I.

Hartmann filed a federal income tax return for 2006, but did not pay the liability reported on the return. The IRS subsequently assessed the delinquent tax, along with interest and a failure-to-pay penalty and issued Hartmann a notice and demand for payment. After Hartmann failed to remit payment, the IRS sent him a final notice of intent to levy upon his property, and informed him of his right to request a collection due process hearing ("CDP").*fn1 Hartmann filed a timely request for a CDP hearing and indicated that he intended to propose a tax collection alternative. Following an October 2009 CDP hearing, and after failing to receive documentation from Hartmann in support of a tax collection alternative, the IRS Office of Appeals issued a Notice of Determination approving the proposed levy.

Hartmann timely challenged that determination before the Tax Court. The IRS moved for summary judgment. In May 2010, the Tax Court granted the IRS' motion for summary judgment and sustained the determination made by the IRS. Hartmann timely appealed from that order.

II.

The Tax Court had jurisdiction under 26 U.S.C. § 6330(d)(1), and we have jurisdiction under 26 U.S.C. § 7482(a)(1). We exercise plenary review of the Tax Court's order granting the IRS' summary judgment motion. See Conn. Gen. Life Ins. Co. v. Comm'r, 177 F.3d 136, 143 (3d Cir. 1999). Like Rule 56(c) of the Federal Rules of Civil Procedure, Rule 121(b) of the Tax Court Rules of Practice and Procedure provides that summary judgment may be granted "if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law." Craig v. Comm'r, 119 T.C. 252, 259-60 (2002).

III.

We conclude that Hartmann has failed to demonstrate that the Tax Court erred in granting the IRS's summary judgment motion. Hartmann argues here, as he did before the Tax Court, that the levy upon his property cannot be sustained because the IRS improperly refused to consider a proposed tax collection alternative to satisfy his delinquent federal income taxes. Contrary to Hartmann's assertion, the record demonstrates that the IRS did provide him with an opportunity to submit a proposed collection alternative with supporting documentation, but that he failed to timely do so.

In a September 3, 2009 letter, the Settlement Officer ("SO") assigned to Hartmann's case informed him that the IRS would consider a proposed collection alternative, but that, in support of such a proposal, Hartmann had to submit certain documentation. (See Tax Court Record at 4.) Specifically, the letter stated that Hartmann had to provide the following within fourteen days of the date of the letter: (1) a completed collection information statement (IRS Form 433-A for individuals and/or Form 433-B for businesses); (2) signed copies of his 2007 and 2008 tax returns; (3) proof of his estimated tax payments for 2009; (4) IRS Form 656 (offer in compromise); (5) the application fee; and (6) an advance partial payment. Listed ...


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