T.C. Memo. 2010-212

UNITED STATES TAX COURT

RICK AND PATRICIA MAHLUM, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 26443-09L. Filed September 30, 2010.

Mark A. Pridgeon, for petitioners.

Christina L. Cook, for respondent.

MEMORANDUM OPINION

HOLMES, Judge: Rick and Patricia Mahlum owed more than

$15,000 in unpaid income tax for 2007. The Commissioner wrote

them and threatened to collect by levying upon their property. 

The Mahlums asked for a collection due process (CDP) hearing and

then at the hearing asked--as an alternative to the government’s
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seizing their property--to have their debt placed in “currently

not collectible” status. 

The settlement officer who ran the hearing rejected their

request after speaking with the Mahlums’ attorney. She explained

that the IRS would not consider any alternative to collection

unless the Mahlums turned in a financial statement, verified that

they had paid estimated tax on their 2009 income, and submitted a

copy of their 2008 tax return. The settlement officer never

received these documents and, after waiting a while, sent a

notice of determination in October 2009 denying the Mahlums’

request to be placed in noncollectible status. The Mahlums

(residents of Minnesota) filed their petition. The case was

heading to trial in St. Paul when the parties agreed on the

contents of the administrative record; the Commissioner has now

moved for summary judgment.

There are only two issues. The first is whether we can look

to evidence outside the administrative record. This case is

appealable to the Eighth Circuit, which has ruled that we may

not. In Robinette v. Commissioner, 439 F.3d 455, 459-61 (8th

Cir. 2006), revg. 123 T.C. 85 (2004), and Fifty Below Sales &

Mktng., Inc. v. United States, 497 F.3d 828, 829 (8th Cir. 2007),

that circuit ruled that the scope of review in a CDP case is

limited to the administrative record. The Mahlums promised to

supply the missing information and urge us, under Lardas v.
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Commissioner, 99 T.C. 490, 494-95 (1992) and Internal Revenue

Code section 6330, to look beyond the record and take their

promise into consideration. We will not: We have to follow

Eighth Circuit precedent. See Golsen v. Commissioner, 54 T.C.

742, 756-57 (1970), affd. 445 F.2d 985 (10th Cir. 1971). 

The second issue is whether, looking at the administrative

record, we should find that the settlement officer abused her

discretion when she rejected the Mahlums’ suggested alternative

to collection. But the Mahlums had neither submitted financial

data nor become current with their tax-return filings for later

years. We have held that the Commissioner does not abuse his

discretion by rejecting a collection alternative on either

ground. See, e.g., Giamelli v. Commissioner, 129 T.C. 107, 110-

12 (2007) (no abuse of discretion when the taxpayer has not

complied with current tax obligations); Swanton v. Commissioner,

T.C. Memo. 2010-140 (no abuse of discretion when the taxpayer has

not submitted financial information). 

Failing in both ways mitigates neither. We will grant the

Commissioner’s motion for summary judgment, and 

An order and decision will be

entered for respondent.