United States Tax Court

T.C. Memo. 2023-125

MARTIN G. PLOTKIN,

Petitioner,

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

__________

Docket No. 16224-14L. Filed October 19, 2023.

__________

Martin G. Plotkin, pro se. 

Miriam C. Dillard and A. Gary Begun, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

MORRISON, Judge: This is a collection due process (CDP) case 

brought by petitioner, Martin G. Plotkin, pursuant to section 6330(d)1

for review of a determination by the Internal Revenue Service (IRS) 

Office of Appeals (Appeals) sustaining a notice of intent to levy to collect 

unpaid federal income tax liabilities for the tax years 1991–95. 

On April 4, 2019, we issued a Memorandum Opinion (the April 

2019 Memorandum Opinion), Plotkin v. Commissioner, T.C. Memo. 

2019-27, which resolved all issues in the case. The April 2019 

Memorandum Opinion agreed in part with petitioner’s Motion for 

Summary Judgment dated February 27, 2018, as supplemented on April 

2, 2018, as to his reported tax liabilities (and related interest and 

additions to tax) for 1991, 1992, and 1993. Id. at *33. We opined that 

the determination of Appeals should not be sustained as to the collection 

1 Unless otherwise indicated, section references are to the Internal Revenue 

Code of 1986, Title 26 U.S.C., in effect at all relevant times.

Served 10/19/23
2

[*2] of these amounts. Id. at *57. In the same April 2019 Memorandum 

Opinion, we opined that the determination should not be sustained as 

to the collection of a $6,000 amount related to 1995. Id. at *8, *57. 

Neither party has specifically moved for summary judgment as to the 

collection of this $6,000 amount, but neither party denied that the 

determination of Appeals was erroneous as to this amount. Besides 

these two matters, we opined that the determination should be 

sustained, including the portion finding that the proposed levy balanced

the need for efficient collection with the legitimate interest of petitioner 

that the collection action be no more intrusive than necessary. Id.

at *57. We correspondingly explained that partial summary judgment

should be granted to respondent. Id. However, on May 20, 2020, we 

issued an Order withdrawing these portions of the April 2019 

Memorandum Opinion sustaining the determination to the extent that 

it concluded that the proposed levy balanced the need for efficient 

collection with the legitimate interest of petitioner that the collection 

action be no more intrusive than necessary. On February 3, 2021, we 

remanded the case to Appeals to further consider this balancing test. 

On July 29, 2021, and February 2, 2022, Appeals issued supplemental 

notices of determination determining that the proposed levy balanced 

the need for efficient collection with the legitimate interest of petitioner 

that the collection action be no more intrusive than necessary. In this 

Opinion, we hold that this balancing determination was not an abuse of 

discretion.

FINDINGS OF FACT

Petitioner was a resident of Florida when he filed his Petition. 

Plotkin, T.C. Memo. 2019-27, at *5. 

In 2004 three years of income tax of petitioner, and related 

additions to tax and interest, were rendered uncollectible by the 

expiration of the ten-year period for respondent to collect assessed tax 

liabilities. § 6502(a)(1); Plotkin, T.C. Memo. 2019-27, at *6. The 

assessed amounts rendered uncollectible were $4,823.18 for 1991, 

$7,590.38 for 1992, and $2,660.12 for 1993. Plotkin, T.C. Memo. 2019-

27, at *6.

On July 29, 2013, respondent issued a notice of intent to levy to 

petitioner. Id. at *10. The notice stated that respondent intended to 

levy to collect $1,876,431.28 of liabilities for the tax years 1991–95. Id. 

at *11. This amount included the amounts that had been rendered 
3

[*3] uncollectible in 2004 by the expiration of the ten-year period for 

collecting assessed tax liabilities. Id.

The notice of intent to levy gave petitioner the right to request a 

CDP hearing with Appeals. Id. at *10. Petitioner requested and 

received such a hearing. Id. at *11–12.

On June 9, 2014, Appeals issued a notice of determination 

sustaining the levy. Id. at *20. The notice of determination did not 

acknowledge that the levy was intended in part to collect the amounts 

rendered uncollectible in 2004 by the expiration of the ten-year period 

for collecting assessed tax liabilities. The notice of determination stated 

that because petitioner had failed to give Appeals the financial 

information it had requested during the hearing, the proposed levy 

balanced the need for efficient collection with petitioner’s concern that 

any collection action be no more intrusive than necessary. Id. at *21. 

This last statement (that petitioner had to give Appeals the financial 

information it requested for it to make the balancing determination in 

favor of petitioner) might be viewed as inconsistent with four caseactivity entries that had earlier been made by the Appeals officer who 

handled the CDP hearing: 

• First, a case-activity entry on November 15, 2013, stated 

that the officer had reviewed respondent’s records of prior 

returns and that these returns showed that petitioner’s 

only income was Social Security benefits. Id. at *13, *26. 

• Second, a case-activity entry on April 14, 2014, suggested 

that the officer had reviewed records of prior returns, 

determined that petitioner’s only income was Social 

Security benefits, and determined that petitioner qualified 

for alternatives to collection.2 

• Third, a case-activity entry on the same day, April 14, 

2014, suggested that the officer had reviewed records of 

prior returns, determined that petitioner’s only income was 

Social Security benefits, and determined that petitioner 

could not pay the tax sought to be collected.3

2 Although this entry was discussed in the April 2019 Memorandum Opinion, 

these aspects of the entry were not discussed.

3 This entry was not discussed in the April 2019 Memorandum Opinion.
4 

• Fourth, a case-activity entry on June 4, 2014, stated that 

the officer reviewed records of prior returns to see whether

petitioner would be in a hardship situation, that one of the 

returns reported that petitioner had earned $28,510 of 

dividend income, that petitioner might be able to pay the 

tax sought to be collected, and that a notice of 

determination would be issued. Id. at *20.

 Petitioner timely filed his Tax Court Petition for review of the 

June 9, 2014, notice of determination. Id. at *22.

On October 12, 2017, respondent moved for summary judgment. 

Id. at *23. In that Motion, respondent contended that Appeals did not 

abuse its discretion in sustaining the levy. 

On October 16, 2017, petitioner moved for partial summary 

judgment. Id. at *25. One of his theories was that it was impossible for 

respondent to collect any significant portion of the liabilities because 

Appeals had determined on November 15, 2013, that he had no income 

other than Social Security income. Id. at *26. He explained in his 

Motion that his “financial situation was such that collection of any 

significant portion of the amount set out in the Notice of Intent to Levy 

was a practical impossibility.” Because the Motion requested that the 

Court set aside the notice of determination, it is unclear why the Motion 

was titled a Motion for “Partial” Summary Judgment. 

On November 8, 2017, petitioner moved for partial summary 

judgment. Id. In this Motion he argued that the notice of determination 

erred because the proposed levy involved an attempt to collect the 

amounts rendered uncollectible in 2004 by the expiration of the ten-year 

period for collecting assessed tax liabilities. Id. at *26, *27 & n.6. The 

Motion requested that the Court “reverse” the notice of determination. 

It is therefore unclear why this Motion was titled a Motion for “Partial” 

Summary Judgment. 

On November 15, 2017, petitioner filed a Response to 

respondent’s October 12, 2017 Motion for Summary Judgment. Id. at 

*27. Reprising his Motion for Partial Summary Judgment of November 

8, 2017, petitioner argued that the proposed levy was an attempt to 

collect the amounts rendered uncollectible in 2004 by the expiration of 

the ten-year period for collecting assessed tax liabilities. Id. at *28. 

Reiterating the theory he had asserted in his Motion for Partial 

Summary Judgment of October 16, 2017, petitioner contended that 

[*4]
5

[*5] Appeals erred in concluding that the balancing test of section 

6330(c)(3)(C) was met because Appeals had determined that petitioner’s 

income consisted solely of Social Security benefits. Plotkin, T.C. Memo. 

2019-27, at *28. He explained that the balancing test required Appeals 

to determine whether “a taxpayer is financially able to pay an amount 

due.” Petitioner made other arguments, including that Appeals failed 

to perform the verification required by section 6330(c)(1). Plotkin, T.C. 

Memo. 2019-27, at *28–29, *46.

On February 5, 2018, respondent filed a Reply to petitioner’s 

November 15, 2017, Response. Id. at *29. Among other things, 

respondent addressed petitioner’s theory that Appeals erred in 

concluding the balancing test of section 6330(c)(3)(C) was met because 

Appeals had determined that petitioner’s income consisted solely of 

Social Security benefits. Plotkin, T.C. Memo. 2019-27, at *31. 

Respondent gave two reasons why Appeals did not abuse its discretion 

in determining that the balancing test had been met: first, the Appeals 

officer’s case-activity entry of June 4, 2014, stated that prior returns 

showed that petitioner might be able to pay; second, petitioner had 

failed to submit the requested financial information to Appeals. Id.

On February 27, 2018, petitioner filed a Motion for Summary 

Judgment. Id. at *33. In the Motion petitioner stated that, because 

respondent had admitted that reversals of writeoffs on March 5, 2012, 

were improper, thus reinstating the amounts that had been rendered 

uncollectible in 2004 by the expiration of the ten-year period for 

collecting assessed tax liabilities, Appeals had failed to “verify that all 

legal and administrative requirements have been met.” Id. It is unclear 

why petitioner divided his Motion for Summary Judgment into multiple 

separate Motions.

On April 4, 2019, the Court issued the April 2019 Memorandum 

Opinion resolving the parties’ various Motions for Summary Judgment.

Plotkin v. Commissioner, T.C. Memo. 2019-27. 

The April 2019 Memorandum Opinion rejected petitioner’s 

argument regarding the balancing test. Id. at *53. We recognized that 

the Appeals officer’s case-activity entry of June 4, 2014, which stated 

that prior returns showed that petitioner might be able to pay, relied 

upon a false return filed by a third party. Id. However, we held that 

the analysis of the balancing test by Appeals hinged on petitioner’s 

failure to submit the requested financial information, not on the 

information in the prior returns. Id. 
6

[*6] As to petitioner’s argument that the proposed levy was an 

attempt to collect the amounts rendered uncollectible in 2004 by the 

expiration of the ten-year period for collecting assessed tax liabilities, 

the April 2019 Memorandum Opinion held that the uncollectibility of 

these amounts did not mean that the proposed levy was defective as to 

the entire liability. Id. at *55–57. We also observed that of a deficiency

amount that had been determined for tax year 1995 respondent had 

failed to assess $6,000 on account of a typographical error. Id. at *8. 

Neither party has specifically moved for summary judgment as to the 

collection of this $6,000 amount, but neither party denies that Appeals’

notice of determination was erroneous as to collection of this amount. 

The April 2019 Memorandum Opinion held that Appeals did not 

abuse its discretion in performing the verification mandated by 

section 6330(c)(1), except as to its failure to verify whether the ten-year 

period for collecting the assessed liabilities for 1991–93 was still open. 

Plotkin, T.C. Memo. 2019-17, at *44–46.

The April 2019 Memorandum Opinion held that the notice of 

determination should be sustained except as to (1) the amounts 

rendered uncollectible in 2004 by the expiration of the ten-year period 

for collecting assessed tax liabilities and (2) the $6,000 amount. Id.

at *8, *57.

On July 1, 2019, the IRS Office of Appeals was renamed the IRS 

Independent Office of Appeals. See Taxpayer First Act, Pub. L. No. 116-

25, § 1001, 133 Stat. 981, 983 (2019).

On May 20, 2020, we reconsidered our April 2019 Memorandum 

Opinion. We did so on Motion of petitioner, who argued that Appeals 

had obtained information that his financial situation was such that it 

was impossible to collect any significant portion of the liabilities, and 

that as a result, the notice of determination erred in concluding that the 

balancing test of section 6330(c)(3)(C) had been satisfied. In particular, 

petitioner argued that the determination by Appeals regarding the 

balancing test was inconsistent with the proposition that “[p]etitioner’s 

only income came from his Social Security Benefits, which were 

insufficient to provide for any payment of the liability.” We agreed with 

petitioner’s argument inasmuch as we withdrew the portions of the 

April 2019 Memorandum Opinion holding that Appeals did not err in 

applying the balancing test of section 6330(c)(3)(C) because of 

petitioner’s failure to submit the requested financial information. Our 

rationale for withdrawing those portions of the April 2019 Memorandum 
7

[*7] Opinion was that in evaluating respondent’s Motion for Summary 

Judgment, we should draw inferences in favor of petitioner, and that 

consequently we should not infer that the reasoning of Appeals hinged 

independently on petitioner’s failure to provide the requested financial 

information. See Naftel v. Commissioner, 85 T.C. 527, 529 (1985) 

(stating that resolving a motion for summary judgment, the Court must 

draw inferences in favor of the nonmoving party). We left unchanged 

the other portions of the April 2019 Memorandum Opinion. We stated 

that the only unresolved issue in the case was whether Appeals 

determined that petitioner’s income consisted solely of Social Security 

benefits and if so, whether this meant that Appeals abused its discretion 

in concluding that the proposed levy balanced the need for the efficient 

collection of tax with petitioner’s legitimate concern that any collection 

action be no more intrusive than necessary. 

On January 28, 2021, respondent moved to have the Court 

remand the case to Appeals “with respect to the one unresolved issue in 

the instant case—the reasoning behind Appeals’ conclusion on the 

balancing test of I.R.C. § 6330(c)(3)(C).” The Motion stated that 

petitioner had told respondent that he was willing to consider remand if 

he had the opportunity to participate in the remand proceeding. 

On February 3, 2021, the Court remanded the case to Appeals “for 

clarification and for further consideration . . . with respect to the 

balancing test.” The Court ordered Appeals to hold a further hearing no 

later than April 30, 2021. The Court did not initially set a deadline for 

Appeals to issue a supplemental notice of determination. 

On July 7, 2021, the Court ordered Appeals to issue a 

supplemental notice of determination on or before July 29, 2021. 

On July 29, 2021, Appeals issued a supplemental notice of 

determination. 

By Motion filed by the Court on August 16, 2021, petitioner stated 

that he had been prevented from participating in the remand hearing 

by mailing and other delays. Consequently, we imposed a new deadline 

for Appeals to issue a new supplemental notice of determination 

regarding the remand. The new deadline was February 2, 2022. 

On February 2, 2022, Appeals issued a second supplemental 

notice of determination. In that notice, Appeals sustained the proposed

levy and stated that petitioner is not entitled to currently-not-collectible 
8

[*8] (CNC) status because petitioner failed to submit requested 

financial information:

You were afforded a second supplemental hearing by 

the Order of Tax Court. The purpose of the second 

supplemental hearing remains the same, for further 

consideration in order to enable the Court to understand 

respondent’s determinations in the notice of determination 

with respect to the balancing test. I have reviewed the 

additional correspondence received from you. I have 

provided you Internal Revenue Manual (IRM) references, 

which requires you to provide a completed Form 433-A, 

Collection Information Statement, for review of your 

ability/inability to pay. You do not meet the currently not 

collectable exception criteria as indicated in IRM 

5.19.17.2.4.1, due to your total balances due the IRS. 

During the original hearing, you were provided multiple 

opportunities to provide a completed Form 433-A and 

declined the opportunity to assist you in a determination 

as to the proposed levy by the IRS. Therefore the proposed 

levy action is sustained. 

Another portion of the notice of determination explained the 

significance of the amount of the balance due: 

During the Supplemental Hearing, I provided you 

multiple Internal Revenue Manual (IRM) references, 

reflecting a completed Form 433-A, Collection Information 

Statement (CIS) is required to proceed with a resolution as 

to the proposed levy action by the IRS. There is an 

exception as indicated in IRM 5.19.17.2.4.1, if the reported 

income is social security only, however, the IRM reference 

is only in regard to balances due of $10,000.00 or less the 

IRS. Therefore you do not qualify. Your balance due the 

IRS requires you to disclose your assets, income and 

expense to determine the appropriate resolution to the 

balances due. During the original hearing you were 

provided multiple times, the opportunity, to provide a 

completed 433-A, CIS and you declined Ms. Chavez’s and 

my request to assist you.

Based on this, I have determined due to your refusal 

to provide a completed Form 433-A, CIS, I am unable to 
9 

assist you with a resolution as to the levy action proposed 

by the IRS.

The proposed levy action is sustained.

Another portion of the second supplemental notice of 

determination explained the importance of the requested financial 

information:

Per IRM 5.16.1.2.9 – Hardship, in summary states a 

hardship exists if you are unable to pay reasonable basic 

living expenses. The basis for a hardship determination is 

from information about your financial condition provided 

on Form 433–A, Collection Information Statement for 

Wage Earners and Self-Employed Individuals. Generally, 

these cases involve no income or assets, no equity in assets 

or insufficient income to make any payment without 

causing hardship. An account should not be reported as 

CNC if the taxpayer has income or equity in assets and 

enforced collection of the income or assets would not cause 

hardship. It states verification of a CIS is not required if 

the aggregate unpaid balance of assessments is less than 

$10,000.00 and the information on the CIS appears 

reasonable. There are certain conditions, a CIS is not 

required before reporting an account CNC. The aggregate 

unpaid balance of assessments, including any prior CNCs, 

must be less than $10,000.00 and states that certain 

conditions must exist. It further states verification that is 

required for balances due between $10,000.00 and 

$100,000.00 and balances above $100,000.00. IRM 5.15.1 

– Financial Analysis Handbook as notated in the IRM 

5.16.1.2.9 is utilized when you provide a completed CIS. 

The second supplemental notice of determination concluded that 

petitioner refused “to provide the information required” and that 

therefore it was Appeals’ judgment that “the Notice of Intent to Levy 

balances the efficient collection of taxes with your legitimate concern 

that the collection action be no more intrusive than necessary.” 

On December 16, 2022, this case was tried by videoconference. At 

trial we admitted Exhibit 1000-R, which consisted of (1) the second 

supplemental declaration of Appeals Officer Lora Davis and (2) subexhibits A through QQ. 

[*9]
10

[*10] OPINION

Before respondent can levy to collect a tax liability, respondent 

must first notify the taxpayer of the right to a CDP hearing with 

Appeals. § 6330(a)(1), (b)(1). The hearing, and Appeals’ determination 

following the hearing, are governed by section 6330. Section 6330(c)(1) 

provides that at the hearing the Appeals officer must obtain verification 

from the Secretary that the requirements of any applicable law or 

administrative procedure have been met. Section 6330(c)(2) provides 

that the taxpayer may raise at the hearing (1) any relevant issue related 

to the unpaid tax or the proposed levy, including challenges to the 

appropriateness of collection actions and including offers of collection 

alternatives, and (2) challenges to the existence or amount of the 

underlying tax liability if the person did not have a prior opportunity to 

dispute such tax liability. Section 6330(c)(3) provides that the 

determination by Appeals must take into consideration the verification 

presented under section 6330(c)(1), the issues raised under section 

6330(c)(2), and, finally (as provided by section 6330(c)(3)(C)), whether 

the proposed collection action (in this case a levy) balances the need for 

the efficient collection of taxes with the taxpayer’s legitimate concern 

that any collection action be no more intrusive than necessary. Unless 

the existence or amount of the underlying tax liability is properly at 

issue, we review the determination for abuse of discretion. Goza v. 

Commissioner, 114 T.C. 176, 181–82 (2000).

The only remaining issue to resolve is whether Appeals 

determined that petitioner’s income consisted solely of Social Security 

benefits and if so, whether Appeals abused its discretion in concluding 

that the proposed levy balanced the need for the efficient collection of 

tax with petitioner’s legitimate concern that any collection action be no 

more intrusive than necessary. 

I. Appeals did not err in not placing petitioner’s account in CNC

status.

On remand, Appeals determined that petitioner did not meet the 

criteria for CNC status. “CNC status, which suspends IRS collection 

efforts, ‘is a “collection alternative” that the taxpayer may propose and 

that the Office of Appeals must take into consideration.’” Riggs v. 

Commissioner, T.C. Memo. 2015-98, at *11 (quoting Wright v. 

Commissioner, T.C. Memo. 2012-24, slip op. at 7); see also Norberg v. 

Commissioner, T.C. Memo. 2022-30, at *5. It is available if a taxpayer 
11

[*11] has “no apparent ability to make payments on the outstanding tax 

liability.” Norberg, T.C. Memo. 2022-30, at *5. 

Because petitioner refused to submit financial information, 

Appeals determined that petitioner’s account did not qualify for CNC 

status. As Appeals recognized, the amount respondent is attempting to 

collect from petitioner is more than $10,000. Appeals followed guidance 

in the Internal Revenue Manual that the account of a taxpayer with a 

balance due of more than $10,000 cannot be placed in CNC status unless 

the taxpayer’s income, expenses, and equity in assets, are verified by 

financial information from the taxpayer. Reproduced below are relevant 

portions of the Internal Revenue Manual 5.16.1.2.9(1)–(5) (May 22, 

2012), which are found in the administrative record at Ex. 1001-R, Ex. 

S, at 161–62:

(1) Follow the procedures in IRM 5.15.1, Financial 

Analysis Handbook, to determine the correct 

resolution of the case based on the taxpayer’s assets 

and equity, income and expenses:

• A hardship exists if a taxpayer is unable to pay 

reasonable basic living expenses.

• The basis for a hardship determination is from 

information about the taxpayer’s financial 

condition provided on Form 433-A, Collection 

Information Statement for Wage Earners and 

Self-Employed Individuals or Form 433-B, 

Collection Information Statement for Businesses.

• Generally, these cases involve no income or 

assets, no equity in assets or insufficient income 

to make any payment without causing hardship.

• An account should not be reported as CNC if the 

taxpayer has income or equity in assets, and 

enforced collection of the income or assets would 

not cause hardship.

• Hardship accounts are closed using cc 24 through 

32. See Exhibit 5.16.1-2.

Reminder: Hardship closing codes can only be 

used for individual or joint IMF assessments, sole 
12

proprietorships, general partnerships, and LLCs, where 

an individual owner is identified as the liable taxpayer. 

See IRM 5.16.1.2.4 for decedent cases.

(2) Verification of a CIS is not required if the aggregate 

unpaid balance of assessments is less than $10,000 

and the information on the CIS appears reasonable.

(3) Under certain conditions, a CIS is not required 

before reporting an account CNC. The aggregate 

unpaid balance of assessments, including any prior 

CNCs, must be less than $10,000.00 and at least 

one of the following conditions must exist:

• The taxpayer has a terminal illness or excessive 

medical bills.

• The taxpayer is incarcerated.

• The taxpayer’s only source of income is social 

security, welfare, or unemployment.

• The taxpayer is unemployed with no source of 

income. Consider a mandatory follow-up or 

Manually Monitored Installment Agreement 

(MMIA) for seasonal workers.

Note: Employees are required to secure 

documentation from the taxpayer prior to declaring the 

account uncollectible if internal documents such as 

IRPTR and RTVUE do not confirm the taxpayer’s 

circumstance.

(4) The following verification is required for accounts 

when the aggregate unpaid balance of assessments 

is between $10,000.00 and $100,000.00:

• IRPTR or SUPOL

• RTVUE/TRDBV

• Conduct Currency and Banking Retrieval 

System (CBRS) research when IRPTR reflects 

that a taxpayer has filed a Foreign Bank Account 

[*12]
13

Reporting (FBAR) form to obtain the name of the 

bank where the account is located, the amount in 

the account, co-owners, and other useful 

information. See IRM 5.1.18.15, Foreign Bank 

Account Report. 

Note: RTVUE/TRDBV is required only if the last 

filed return was for one of the immediate two preceding 

years. If RTVUE reveals new income or asset 

information secure a copy of the return(s) for the 

purpose of identifying income or assets.

(5) For accounts where the aggregate unpaid balance of 

assessments is above $100,000.00 the following 

additional verification is required:

• Full credit report on IMF and sole proprietor 

taxpayers and LLCs (where an individual owner 

is identified as the liable taxpayer)

• Motor vehicle records

• Real and personal property courthouse records, 

see IRM 5.1.18.4, Real Property Records

• On-line locator services, such as Accurint, follow 

security guidelines when using public internet 

search engines.

• CC AMDIS. If there is an open Examination 

activity, contact the revenue agent to determine 

any additional sources of collection or the need to 

limit the scope of the examination based on 

collectability.

• Audit File or Special Agents Report if the 

assessment originated in Examination or 

Criminal Investigation (CI). The file can be 

secured by requesting the DLN of the TC 

29X/30X.

Note: If unable to obtain any information from the 

special agent, consider consulting with Advisory. If 

[*13]
14

there is a TC 910 on the module, the taxpayer may have 

filed a financial statement with the probation office. 

Note: Credit reports are optional for accounts with 

an aggregate balance below $100,000.00.

We hold that Appeals did not abuse its discretion in refusing to 

place petitioner’s account in CNC status. See Chadwick v. 

Commissioner, 154 T.C. 84, 95 (2020) (stating that Appeals does not 

abuse discretion in denying CNC status to taxpayer who does not submit 

the necessary financial information).

In our Order of May 20, 2020, we inferred from the then-existing 

administrative record that Appeals could rely entirely on past-filed 

returns, without requiring financial information from petitioner, in 

determining whether petitioner could pay his tax.4 Our Order of May 

20, 2020, drew all inferences about the administrative record in favor of 

petitioner, the party opposing respondent’s Motion for Summary 

Judgment. See Naftel, 85 T.C. at 529. But we are not now evaluating 

the merits of a Summary Judgment Motion filed by respondent. We are 

weighing the evidence adduced at trial. Furthermore, the 

administrative record is now different from the one we considered in our 

Order of May 20, 2020. The administrative record related to the remand 

proceedings shows that Appeals denied CNC status for petitioner’s 

account because he refused to provide financial information. Our 

conclusion that Appeals on remand did not abuse its discretion in 

denying CNC status for petitioner’s account is not inconsistent with our 

Order of May 20, 2020. In that Order we determined that an issue

remained for trial. We have now had that trial. We resolve the issue in 

favor of respondent.

II. Appeals did not err in evaluating petitioner’s sole unresolved 

challenge to the levy by determining whether his account was 

eligible for CNC status.

Petitioner contends that Appeals erred on remand in considering 

whether his account was eligible for CNC status. Petitioner explains 

that he did not request such status during the remand hearing and 

4 We had observed that the two case-activity entries of April 14, 2014, 

“suggested” that the Appeals officer had “reviewed information from petitioner’s 

income tax returns and, on the basis of that information, concluded that petitioner 

could not pay the amounts the levy was intended to collect.”

[*14]
15

[*15] therefore he should not have been subjected to the requirement 

that he submit financial information. 

Although petitioner did not request CNC status on remand, 

Appeals agreed to waive the requirement that petitioner request CNC 

status. As the second supplemental notice of determination states: “It 

has been agreed that you are not required to request a collection 

alternative or CNC during the CDP Appeals process.” The question 

therefore becomes whether Appeals erred in waiving this requirement 

and in considering whether petitioner’s account qualified for CNC status 

despite this requirement. 

CNC status is appropriate when the taxpayer cannot pay. 

Norberg, T.C. Memo. 2022-30, at *5. Petitioner’s argument related to 

Social Security benefits was in essence that he cannot pay the amounts 

respondent intends to collect. As petitioner argued in his Motion for 

Partial Summary Judgment on October 16, 2017, his “financial situation 

was such that collection of any significant portion of the amount set out 

in the Notice of Intent to Levy was a practical impossibility.” In his 

November 15, 2017 Response to respondent’s October 12, 2017, Motion 

for Summary Judgment, petitioner contended that Appeals had failed to 

determine whether he was “financially able to pay.” Thus, by 

considering petitioner’s qualification for CNC status, Appeals was 

considering the argument that petitioner made against the proposed

levy (his alleged inability to pay), which was the same argument the 

Court considered in reconsidering its grant of respondent’s Motion for 

Summary Judgment. Plotkin, T.C. Memo. 2019-27, at *52–53. It was 

appropriate for Appeals on remand to evaluate petitioner’s argument 

against the intended levy by determining whether petitioner’s account

qualified for CNC status.

III. Appeals did not err in considering petitioner’s refusal to provide 

financial information in applying the balancing test.

The corollary to petitioner’s argument that financial information 

should be required only for taxpayers who request CNC status is that 

no such information should be required for Appeals to apply the 

balancing test under section 6330(c)(3)(C). This argument is unavailing. 

Looking at the second supplemental notice of determination through the 

lens of section 6330(c)(3)(C), we discern no abuse of discretion by 

Appeals. The second supplemental notice of determination concluded 

that petitioner refused “to provide the information required” and that 

therefore it was Appeals’ judgment that “the Notice of Intent to Levy 
16

[*16] balances the efficient collection of taxes with your legitimate 

concern that the collection action be no more intrusive than necessary.” 

The Internal Revenue Manual’s guidance for determining whether a levy 

meets the section 6330(c)(3)(C) balancing test requires Appeals to 

consider a taxpayer’s “financial circumstances.” Gonzalez v. 

Commissioner, T.C. Memo. 2010-8, slip op. at 8 (“As required under 

section 6330(c)(3)(C), an Appeals officer should consider, among other 

things, a taxpayer’s actions, compliance history, and financial 

circumstances when balancing the Government’s needs with those of the 

taxpayer. Internal Revenue Manual pt. 8.7.2.3.13(6) (Jan. 1, 2006).”) In 

the remand proceeding, Appeals asked petitioner for financial 

information in order to understand his financial circumstances. 

Petitioner refused to provide any. Consequently, Appeals did not err in 

concluding the levy met the balancing test under section 6330(c)(3)(C). 

See Cosio v. Commissioner, T.C. Memo. 2022-18, at *8 (stating that 

where taxpayer did not respond to requests for financial information or 

a completed offer-in-compromise form, Appeals did not abuse its 

discretion in determining that the levy balanced the needs of collection 

with the concerns of the taxpayer); Bunton v. Commissioner, T.C. Memo. 

2021-141, at *22 (stating that Appeals did not abuse its discretion in 

concluding that the levy balanced the needs of collection with the 

concerns of the taxpayers given that taxpayers never submitted 

financial information or outstanding tax returns), aff’d, No. 22-70139, 

2023 WL 4449183 (9th Cir. July 11, 2023); Ramdas v. Commissioner, 

T.C. Memo. 2013-104, at *41 (stating that a taxpayer who alleges that a 

levy would be a hardship must follow up with further information to 

prove the harmfulness of the levy before Appeals, otherwise the 

taxpayer does not prove hardship that would render the levy “more 

intrusive than necessary”); Vuckovich v. Commissioner, T.C. Memo. 

2009-7, slip op. at 8–9 (same); see also Assured Source, Inc. v. 

Commissioner, T.C. Memo. 2010-243, slip op. at 7–9 (stating that 

Appeals did not abuse its discretion by failing to engage in the balancing 

analysis under section 6330(c)(3)(C) where taxpayer submitted no 

financial information and did not submit outstanding tax returns).

IV. Appeals did not err regarding matters outside the scope of the 

remand.

On brief, petitioner also makes two arguments regarding the 

amounts rendered uncollectible in 2004 by the expiration of the ten-year 

period for collecting assessed tax liabilities. First, petitioner contends 

that Appeals erred in its original notice of determination in verifying 

that all requirements of any applicable law or administrative procedure 
17

[*17] have been met. Second, petitioner contends that respondent has 

abated interest in the wrong amount. The CDP hearing conducted on 

remand was not a new hearing, but rather a hearing to provide “the 

parties with the opportunity to complete the initial section 6330 hearing 

while preserving the taxpayer’s right to receive judicial review of the 

ultimate administrative determination.” Kelby v. Commissioner, 130 

T.C. 79, 86 (2008) (quoting Drake v. Commissioner, T.C. Memo. 2006-

151, aff’d, 511 F.3d 65 (1st Cir. 2007)). We remanded the case to Appeals 

to consider only one issue, the balancing test. These other issues are 

outside the scope of the remand. 

V. Conclusion

In its second supplemental notice of determination, dated 

February 2, 2022, Appeals did not abuse its discretion in determining 

that the proposed levy balances the efficient collection of taxes with 

petitioner’s concern that the collection action be no more intrusive than 

necessary. All other issues in this case were resolved by our April 2019 

Memorandum Opinion, as modified by our May 20, 2020, Order. 

Consequently, the June 9, 2014, notice of determination by Appeals, as 

supplemented by the July 29, 2021, supplemental notice of 

determination, and as supplemented by the February 2, 2022, second 

supplemental notice of determination, should be sustained except as to 

the collection of the following liabilities by the proposed levy: (1) the tax 

liabilities (and related interest and additions to tax) for 1991, 1992, and 

1993 and (2) the liability for the deficiency for 1995 of $6,000 (the 

difference between $66,031 and $60,031). 

To reflect the foregoing, 

An appropriate order and decision will be entered.