183

1 Unless otherwise indicated, section and Internal Revenue Code references are to the Internal Revenue Code of 1986, as amended and in effect at all relevant times, and Rule references are to the Tax Court Rules 

of Practice and Procedure. 

PATRICIA A. MOOSALLY, PETITIONER v. COMMISSIONER

OF INTERNAL REVENUE, RESPONDENT

Docket No. 6539–12L. Filed March 27, 2014. 

R rejected P’s OIC for P’s trust fund recovery penalties for 

the periods ending Mar. 31 and Sept. 30, 2000, and P’s income 

tax liability for her 2008 tax year. P appealed R’s rejection, 

and R assigned Appeals Officer S to review P’s OIC. R also 

filed an NFTL for P’s tax liabilities in issue and issued a 

Letter 3172. P requested a CDP hearing pursuant to I.R.C. 

sec. 6320, and R assigned Appeals Officer K to conduct P’s 

CDP hearing. After Appeals Officer S had initiated review of 

P’s OIC, R transferred P’s CDP case from Appeals Officer K 

to Appeals Officer S. Appeals Officer S sustained R’s rejection 

of P’s OIC and sustained R’s filing of the NFTL. P petitioned 

for review, contending that the CDP hearing was improper 

because Appeals Officer S was not an impartial officer pursuant to I.R.C. sec. 6320(b)(3). Held: Appeals Officer S was not 

an impartial officer pursuant to I.R.C. sec. 6320(b)(3) and sec. 

301.6320–1(d)(2), Proced. & Admin. Regs. Held, further, P is 

entitled to a new CDP hearing before an impartial Appeals 

Officer. 

Michael E. Breslin, for petitioner. 

Marissa J. Savit, for respondent. 

WELLS, Judge: Petitioner seeks review, pursuant to section 

6320, of respondent’s determination to proceed with collection of petitioner’s unpaid trust fund recovery penalty liabilities for periods ending March 31 and September 30, 2000, 

and also petitioner’s Federal income tax liability for her 2008 

tax year. 1 The issues we have been asked to decide are: (1) 

whether the Internal Revenue Service (IRS) Appeals Office 

settlement officer to whom petitioner’s case and hearing were 

assigned was an impartial officer pursuant to section 

184 142 UNITED STATES TAX COURT REPORTS (183) 

6320(b)(3), and (2) if she was an impartial officer, whether 

respondent may proceed with collection of petitioner’s unpaid 

tax liabilities in issue. 

FINDINGS OF FACT 

Some of the facts and certain exhibits have been stipulated. The parties’ stipulated facts and the attached exhibits 

are incorporated in this Opinion by reference and are found 

accordingly. At the time of filing the petition, petitioner 

resided in Ohio. 

On November 29, 2001, petitioner signed Form 2751, Proposed Assessment of Trust Fund Recovery Penalty, and consented to the assessment and collection of trust fund 

recovery penalties (TFRPs) pursuant to section 6672 of 

$22,789.42 for the period ending March 31, 2000, and of 

$14,859.16 for the period ending September 30, 2000. On 

March 18, 2002, respondent assessed against petitioner 

TFRPs in the amounts listed above. 

Additionally, with respect to petitioner’s 2008 tax year, 

respondent sent to petitioner, on December 7, 2009, Notice 

CP2000 proposing an increase in petitioner’s Federal income 

tax of $2,150. After receiving the Notice CP2000, petitioner 

filed a Form 1040X, Amended U.S. Individual Income Tax 

Return, reporting the previously undeclared income for her 

2008 tax year. On March 23, 2010, respondent assessed 

against petitioner the $2,150 tax increase for her 2008 tax 

year. 

On June 21, 2010, petitioner submitted to respondent a 

completed Form 656, Offer in Compromise (OIC), with 

attached Form 433–A, Collection Information Statement for 

Wage Earners and Self-Employed Individuals, proposing to 

compromise for $200 her unpaid tax liabilities arising out of 

TFRPs assessed against her for the tax periods ending March 

31 and September 30, 2000. Petitioner requested that her 

OIC be accepted under ‘‘doubt as to collectibility’’ criteria and 

claimed that she had insufficient assets and income to pay 

the full amount owed. 

On March 12, 2011, the IRS Centralized OIC Unit (COIC 

Unit) sent petitioner a letter confirming receipt of her OIC. 

From March to May 2011, acting through letters and telephone calls, the COIC Unit requested and petitioner provided 

(183) MOOSALLY v. COMMISSIONER 185

additional information, substantiation, and explanation of 

the representations that petitioner set forth on her OIC and 

Form 433–A. At a point during their communication, the 

COIC Unit and petitioner discussed petitioner’s unpaid 

income tax liability for her 2008 tax year and included that 

liability among the outstanding amounts that petitioner was 

seeking to settle through her OIC. On May 31, 2011, 

respondent rejected petitioner’s OIC because the COIC Unit 

calculated petitioner’s reasonable collection potential to be 

$34,497.88. The COIC Unit also recommended that 

respondent file a notice of Federal tax lien (NFTL) with 

respect to petitioner’s unpaid tax liabilities. 

On June 28, 2011, petitioner appealed to the Appeals 

Office the rejection of her OIC, listing her income tax 

liability for her 2008 tax year in addition to the TFRPs for 

the periods ending March 31 and September 30, 2000, as the 

liabilities and tax periods involved with the appeal (periods 

in issue). Petitioner also sent the Appeals Office a letter with 

additional documents and information to support her OIC 

and to inform the Appeals Office that her circumstances had 

changed and that she had lost her job. The Appeals Office 

confirmed receipt of petitioner’s appeal of her rejected OIC 

and informed petitioner that Settlement Officer Barbara 

Smeck had been assigned to her case. 

On July 12, 2011, respondent filed an NFTL for the 

periods in issue and mailed to petitioner a Letter 3172, 

Notice of Federal Tax Lien Filing and Your Right to a 

Hearing Under IRC 6320. The Letter 3172 informed her that 

she had a right to a collection due process (CDP) hearing and 

that she had to request a CDP hearing by August 18, 2011. 

Petitioner submitted a Form 12153, Request for a Collection 

Due Process or Equivalent Hearing, on July 27, 2011, to 

request a CDP hearing with respect to her unpaid tax liabilities for the periods in issue. On Form 12153, petitioner 

requested that the Appeals Office discuss collection alternatives and withdraw the NFTL. Settlement Officer Donna 

Kane was assigned to review petitioner’s case and to provide 

her with her CDP hearing. 

Ms. Smeck sent petitioner a letter on August 25, 2011, 

requesting that she submit, by September 26, 2011, additional financial information and substantiation, as well as an 

updated Form 433–A. Petitioner responded to Ms. Smeck’s 

186 142 UNITED STATES TAX COURT REPORTS (183) 

2 Respondent made petitioner aware of her right to a CDP hearing when 

he sent petitioner the Letter 3172 on July 12, 2011. Petitioner properly requested a CDP hearing by submitting a Form 12153 on July 27, 2011. 

request on September 25, 2011, and provided her with financial information and some of the other requested documents. 

Petitioner later sent to Ms. Smeck additional documentation 

to support her OIC. 

On September 29, 2011, Ms. Kane informed petitioner that 

her CDP case and hearing would be reassigned because petitioner had already submitted an OIC that was under consideration. Petitioner’s CDP case and hearing request were 

transferred from Ms. Kane to Ms. Smeck, who was at that 

time reviewing petitioner’s appeal of her rejected OIC. 

During November 2011, Ms. Smeck reviewed petitioner’s 

rejected OIC and the financial information she had submitted and also called petitioner to discuss her issues with 

her CDP hearing and the option of placing her account in 

‘‘currently not collectible’’ status. 

On February 7, 2012, respondent issued two Notices of 

Determination Concerning Collection Action(s) Under Section 

6320 and/or 6330 (notices of determination), one with respect 

to petitioner’s income tax liability for her 2008 tax year and 

the other with respect to the TFRPs for the periods ending 

March 31 and September 30, 2000. In the notices of determination, respondent sustained the filing of the NFTL and 

the rejection of petitioner’s OIC for the periods in issue. On 

March 9, 2012, petitioner timely petitioned this Court for 

review of respondent’s notices of determination. 

OPINION 

Pursuant to section 6321, the Federal Government obtains 

a lien against ‘‘all property and rights to property, whether 

real or personal’’ of any person liable for Federal tax upon 

demand for payment and failure to pay. See Iannone v. 

Commissioner, 122 T.C. 287, 293 (2004). However, section 

6320(a)(1) requires the Commissioner to give a taxpayer 

written notice of the filing of a notice of Federal tax lien 

upon that taxpayer’s property. The notice of filing must 

inform the taxpayer of the right to request a hearing in the 

Commissioner’s Appeals Office. 2 Sec. 6320(a)(3)(B), (b)(1). 

(183) MOOSALLY v. COMMISSIONER 187

3Pursuant to sec. 6320(b)(3), a taxpayer may waive the impartial officer 

requirement. See also sec. 301.6320–1(d)(2), A–D5, Proced. & Admin. Regs. 

In the instant case, the administrative record does not contain a completed 

and signed Form 14041, Waiver for Right to Request a New Settlement/ 

Appeals Officer Under Section 6320 and/or 6330, and petitioner asserts 

that she did not sign any such waiver. Moreover, respondent does not contend that petitioner waived the requirements of sec. 6320(b)(3). See Rules 

40, 331(b). Accordingly, we conclude that petitioner has not waived the sec. 

6320(b)(3) impartial officer requirement. 4Sec. 301.6320–1(d)(2), A–D4, Proced. & Admin. Regs., also provides 

that ‘‘[p]rior involvement exists only when the taxpayer, the tax and the 

Continued 

Section 6330(c), (d) (other than paragraph (2)(B) thereof ), 

and (e) governs the conduct of a hearing requested under section 6320. Sec. 6320(c). At the hearing, the taxpayer may 

raise any relevant issues including appropriate spousal 

defenses, challenges to the appropriateness of collection 

actions, and collection alternatives. Sec. 6330(c)(2)(A). The 

taxpayer may challenge the underlying tax liability at the 

hearing only if the taxpayer did not receive a statutory notice 

of deficiency or otherwise have an opportunity to dispute the 

tax liability. Sec. 6330(c)(2)(B). In addition to considering 

issues raised by the taxpayer under section 6330(c)(2), the 

Appeals Office must also verify that the requirements of any 

applicable law or administrative procedure have been met. 

Sec. 6330(c)(1), (3). 

If a taxpayer requests a hearing in response to an NFTL 

pursuant to section 6320, a hearing must be conducted by an 

impartial officer or employee of the Appeals Office. 3 Sec. 

6320(b)(1), (3). An impartial officer or employee is one who 

has had no prior involvement with respect to the unpaid tax 

specified in section 6320(a)(3)(A) before the first hearing 

under section 6320 or section 6330. Id. Although the Internal 

Revenue Code does not define the term ‘‘no prior involvement’’, see Harrell v. Commissioner, T.C. Memo. 2003–271, 

2003 WL 22137919, at *7, the Commissioner has promulgated regulations interpreting that term. Section 301.6320– 

1(d)(2), A–D4, Proced. & Admin. Regs., provides: ‘‘Prior 

involvement by an Appeals officer or employee includes 

participation or involvement in a matter (other than a CDP 

hearing held under either section 6320 or section 6330) that 

the taxpayer may have had with respect to the tax and tax 

period shown on the CDP Notice.’’ 4

188 142 UNITED STATES TAX COURT REPORTS (183) 

tax period at issue in the CDP hearing also were at issue in the prior nonCDP matter, and the Appeals officer or employee actually participated in 

the prior matter.’’ We note, however, that at least one Federal court has 

stated that the provision is invalid. See Cox v. Commissioner, 514 F.3d 

1119, 1127 n.10 (10th Cir. 2008), rev’g 126 T.C. 237 (2006). We also note 

that the provision does not affect the instant case, which, as we explain 

below, involves a taxpayer, tax, and tax periods that were at issue in both 

the CDP hearing and a prior non-CDP proceeding and an Appeals officer 

that participated in both matters. 5Petitioner also claims that ‘‘Ms. Smeck’s mind was already made up,’’ 

and each party claims that the other was disagreeable or uncooperative 

and acted in bad faith. We have previously suggested that sec. 6320(b)(3) 

does not entail a challenge to the objectivity of the officer who presides 

over the CDP hearing. See Criner v. Commissioner, T.C. Memo. 2003–328, 

2003 WL 22843085, at *9. We have, however, examined the issue of officer 

prejudice in some instances. See, e.g., Cox v. Commissioner, 126 T.C. at 

253–254; Criner v. Commissioner, 2003 WL 22843085, at *9. Because we 

conclude that Ms. Smeck was not an impartial officer pursuant to sec. 

6320(b)(3) because of her prior involvement with petitioner’s OIC for the 

same taxes and periods in issue, it is unnecessary to reach the question 

of Ms. Smeck’s alleged prejudice or bias, and we do not further address 

that issue. 

Petitioner contends that Ms. Smeck was not an impartial 

officer because she reviewed petitioner’s appeal of her 

rejected OIC for the periods in issue before conducting petitioner’s CDP hearing for the same periods in issue. Petitioner 

contends that the CDP hearing was improper pursuant to 

section 6320(b)(3) and requests that we remand her case to 

the Appeals Office to properly reconsider the NFTL and petitioner’s collection alternatives. Respondent, on the other 

hand, contends that Ms. Smeck was an impartial officer 

because she had not yet issued a determination and that 

there is no ‘‘prior’’ involvement when a reviewing officer has 

not made any determination with respect to the previously 

rejected OIC. Moreover, respondent contends that section 

6320 contemplates simultaneous review of all issues related 

to collections during the CDP hearing and that a simultaneous review benefits taxpayers. 5

In support of her contention, petitioner cites Cox v. 

Commissioner, 514 F.3d 1119 (10th Cir. 2008), rev’g 126 T.C. 

237 (2006). Respondent contends Cox involved facts different 

from those before us. We agree with respondent that the 

facts of Cox are distinguishable. In Cox the taxpayers 

requested a CDP hearing regarding a proposed levy pursuant 

(183) MOOSALLY v. COMMISSIONER 189

to section 6330 for unpaid tax liabilities relating to their 

2000 tax year. Id. at 1121. The Appeals officer assigned to 

the taxpayers’ case then informed the taxpayers that they 

would need to file all outstanding tax returns to be considered for collection alternatives. Id. The taxpayers ultimately 

submitted tax returns for their 2001 and 2002 tax years 

without paying the corresponding tax liabilities. Id. at 1121– 

1122. The Appeals officer reviewed the information provided, 

including the 2001 and 2002 tax returns, and observed that 

‘‘the taxpayers reported a 2002 tax liability of $146,460 but 

made only $1,000 in estimated payments, notwithstanding 

the fact that they earned almost $100,000 in net income 

during the first seven months of 2003.’’ Id. at 1122. On the 

basis of that observation, the Appeals officer concluded that 

the taxpayers could make payments toward their outstanding 

tax liability, determined that the taxpayers were not eligible 

for the collection alternative, and issued a notice of determination sustaining the proposed levy. Id. Meanwhile, the 

Commissioner issued another notice of intent to levy for the 

taxpayers’ unpaid tax liabilities for their 2001 and 2002 tax 

years. Id. The taxpayers requested another CDP hearing to 

discuss the levy relating to their 2001 and 2002 tax liabilities, and the Commissioner assigned the same Appeals 

officer to their case. Id. Again, the Appeals officer concluded 

that the taxpayers did not qualify for a collection alternative 

and that the proposed levy was appropriate. Id. This Court 

had concluded that the officer’s consideration of the taxpayers’ 2001 and 2002 tax returns during their CDP hearing 

for their 2000 tax liability did not constitute ‘‘prior involvement’’ that would disqualify the Appeals officer from handling the taxpayers’ CDP hearing related to their 2001 and 

2002 tax liabilities. Cox v. Commissioner, 126 T.C. at 252– 

253. In doing so, we had relied on two rationales. Id. at 252. 

Our first rationale was that the regulations indicated that 

prior involvement ‘‘does not arise where consideration of 

later years was peripheral to a proceeding the subject of 

which was an earlier year or years’’ and was not the subject 

of, i.e., was not directly in dispute in, a proceeding before the 

Commissioner. Id. Secondly, we concluded that, because the 

law permits multiple CDP hearings with respect to a given 

period to be conducted by the same officer when that period 

is the subject of multiple notices pursuant to sections 6320 

190 142 UNITED STATES TAX COURT REPORTS (183) 

6Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff ’d, 445 F.2d 985 

(10th Cir. 1971), established the rule that this Court will ‘‘follow a Court 

of Appeals decision which is squarely in point where appeal from our deciand/or 6330, there was no greater or different harm where 

‘‘a period is first considered informally in the course of one 

collection proceeding initiated regarding another period and 

then becomes the direct subject of a subsequent proceeding.’’ 

Id. In a divided opinion, the U.S. Court of Appeals for the 

Tenth Circuit reversed our decision and found that the noprior-involvement requirement was a broad restriction that 

should not be limited to involvement in a prior hearing or 

administrative matter but should include any ‘‘substantive 

and material involvement with a taxpayer’s liability, regardless of whether the liability is the liability currently under 

official review by the Appeals Officer.’’ Cox v. Commissioner, 

514 F.3d at 1125, 1127–1128. 

As we noted above, the Tax Court in Cox determined that 

there was no violation of the impartial officer requirement 

because (1) the officer’s prior involvement was only peripheral to, and not the subject of or directly in dispute in, a proceeding before the Court, and (2) there was no greater or different harm where both the officer’s prior involvement and 

current consideration were in the context of a CDP hearing. 

Cox v. Commissioner, 126 T.C. at 252. In the instant case, 

Ms. Smeck’s involvement with petitioner’s appeal of her 

rejected OIC was not simply peripheral to an ongoing proceeding but instead was the subject of a separate administrative proceeding. Additionally, Ms. Smeck reviewed the same 

tax periods, i.e., the periods in issue, for both the OIC appeal 

and the CDP hearing, unlike the officer in Cox, where the 

officer’s prior involvement occurred during the review of a 

different tax period. Moreover, Ms. Smeck’s prior involvement occurred during her handling of an OIC appeal, not a 

previous CDP hearing. Accordingly, the facts before us are 

different from those encountered in Cox and, therefore, the 

Tax Court’s holding in Cox does not require the same result 

in the instant case. 

Respondent also contends that the Court of Appeals’ 

holding in Cox is not precedential for the instant case, which 

is appealable to the U.S. Court of Appeals for the Sixth Circuit. 6 Respondent is correct that we follow a Court of 

(183) MOOSALLY v. COMMISSIONER 191

sion lies to that Court of Appeals’’ (the Golsen rule). 7Pursuant to Golsen v. Commissioner, 54 T.C. at 757, we would apply 

the Court of Appeals’ holding in Cox to future cases arising in the Tenth 

Circuit if the facts were squarely in point with those encountered in Cox. 

See Lardas v. Commissioner, 99 T.C. 490, 493–495 (1992). For clarity, we 

note that we have not decided whether we will apply the Tenth Circuit 

Court of Appeals’ analysis to facts similar to those in Cox arising in cases 

appealable in circuits other than the Tenth Circuit or instead continue to 

follow the standard and rationale set forth in our Opinion in that case. We 

find no need to confront that issue in the instant case because we would 

reach the same conclusion whether we apply our rationale set forth in our 

Opinion in Cox or the ‘‘broad restriction’’ standard set forth in the Court 

of Appeals’ opinion in Cox. Accordingly, our conclusions in the instant case 

do not conflict with the rationale and conclusion set forth in our Opinion 

in Cox. 8 Although the record is unclear as to whether petitioner submitted a formal OIC for the periods in issue or only for the periods ending March 31 

and September 30, 2000, we find that the parties informally included her 

unpaid tax liability for her 2008 tax year in her OIC through the course 

of their interaction. The issue of whether there is an enforceable OIC with 

respect to all of the periods in issue is separate and distinct from whether 

an officer’s review of that OIC is prior involvement pursuant to sec. 

301.6320–1(d), Proced. & Admin. Regs. Because the record is clear that 

Ms. Smeck at least informally reviewed petitioner’s 2008 tax return and 

liability during petitioner’s OIC appeal, we conclude that Ms. Smeck’s 

prior involvement covered the periods in issue and make no conclusion regarding the enforceability of petitioner’s OIC. 

Appeals’ decision where appeal lies to that Court of Appeals 

and, therefore, it does not follow under the Golsen rule that 

we apply the Court of Appeals’ holding in Cox in the instant 

case. 7

As the instant case is distinguishable from Cox, we next 

address whether the facts before us indicate prior involvement. Ms. Smeck reviewed petitioner’s appeal of her rejected 

OIC for the periods in issue for nearly three months before 

petitioner’s CDP hearing for the same periods in issue was 

also transferred to her. During those three months, Ms. 

Smeck requested from petitioner and evaluated various documents, forms, and other financial information to calculate 

petitioner’s reasonable collection potential and evaluate petitioner’s rejected OIC. Accordingly, through her review of petitioner’s rejected OIC, 8 Ms. Smeck had prior involvement 

with petitioner’s unpaid tax liabilities for the periods in issue 

before she was assigned to handle petitioner’s CDP hearing 

for the same taxes and periods in issue. Consequently, we 

192 142 UNITED STATES TAX COURT REPORTS (183) 

hold that, pursuant to section 301.6320–1(d)(2), Proced. & 

Admin. Regs., Ms. Smeck is not an impartial officer pursuant 

to section 6320(b)(3) and petitioner is entitled to a new CDP 

hearing before an impartial officer. 

Respondent contends that Ms. Smeck was an impartial 

officer because she had not yet issued a determination 

regarding petitioner’s rejected OIC and that there is ‘‘current’’ involvement, but no ‘‘prior’’ involvement, when an 

officer has not made any determination regarding a rejected 

OIC. We disagree. The regulations plainly prohibit ‘‘prior 

involvement’’ and do not specify that the involvement must 

culminate in the issuance of a determination of any sort. See 

generally sec. 301.6320–1(d), Proced. & Admin. Regs. Accordingly, we conclude that Ms. Smeck’s participation in petitioner’s OIC appeal constituted ‘‘prior involvement’’ even 

though she did not issue a determination with regard to the 

rejected OIC before handling petitioner’s CDP hearing. 

Additionally, respondent contends that section 6320 contemplates simultaneous review of all issues related to collections during the CDP hearing and that all collection matters 

may be handled by the same officer. Respondent relies on 

three main sources of support for that contention. 

Respondent first cites section 301.6320–1(d)(1), Proced. & 

Admin. Regs., which states that ‘‘the CDP hearing requested 

under section 6320 will be held in conjunction with any CDP 

hearing the taxpayer requests under section 6330.’’ We disagree with respondent’s application of section 301.6320– 

1(d)(1), Proced. & Admin. Regs., to the facts of the instant 

case. That regulation contemplates a situation in which a 

taxpayer requests a lien CDP hearing pursuant to section 

6320 and, separately, a pre-levy CDP hearing pursuant to 

section 6330; in those circumstances, the cited regulation 

provides that the requested CDP hearings may be combined. 

Sec. 301.6320–1(d)(1), Proced. & Admin. Regs. As we read 

the legislative history, Congress contemplated one situation 

where an Appeals officer with prior involvement with respect 

to the unpaid liability specified in the taxpayer’s case may 

combine a separate CDP hearing, i.e., where it involves a 

pre-levy CDP hearing pursuant to section 6330 and a lien 

CDP hearing pursuant to section 6320 regarding the same 

unpaid liability. H.R. Conf. Rept. No. 105–599, at 266 (1998), 

1998–3 C.B. 747, 1020. In that legislative history, Congress 

(183) MOOSALLY v. COMMISSIONER 193

9 In our Opinion in Cox v. Commissioner, 126 T.C. at 250, we referred 

to this same legislative history for the proposition that ‘‘both the statutory 

and the regulatory language suggest a relatively permissive standard 

under which participation in earlier collection proceedings would not constitute disqualifying prior involvement for purposes of section 6320 or 

6330.’’ We do not opine on whether the legislative history supports a permissive standard or whether we will continue to apply a permissive standard to situations similar to Cox that involve two CDP matters. However, 

we conclude that the flexibility contemplated by Congress and provided in 

sec. 301.6320–1(d)(1), Proced. & Admin. Regs., as plainly stated in the regulation, applies only to situations involving two or more CDP matters. 

did not contemplate any additional exceptions that might be 

allowed. Id. 9 Additionally, we note that the applicable regulations state that ‘‘[t]o the extent practicable, a CDP hearing 

under section 6320 will be held in conjunction with a CDP 

hearing under section 6330’’. Sec. 301.6320–1(d)(2), A–D3, 

Proced. & Admin. Regs. (emphasis added). Although that 

provision might suggest that a lien CDP hearing pursuant to 

section 6320 may be combined, when practicable, with 

another lien CDP hearing or that a pre-levy CDP hearing 

pursuant to section 6330 may be combined with another prelevy CDP hearing, see, e.g., Frey v. Commissioner, T.C. 

Memo. 2004–87; Israel v. Commissioner, T.C. Memo. 2003– 

198, aff ’d, 88 Fed. Appx. 941 (7th Cir. 2004), we do not consider that provision to allow the combination of CDP 

hearings with non-CDP matters, such as the OIC rejection 

appeal involved in the instant case. Ms. Smeck began handling petitioner’s non-CDP appeal of her rejected OIC before 

she was later assigned petitioner’s CDP hearing. On the 

basis of the foregoing legislative history, we conclude that 

the regulations respondent cites do not apply in the instant 

case. 

Secondly, respondent relies upon Gravette v. Commissioner, 

T.C. Memo. 2011–138, 2011 WL 2490647, for the proposition 

that there is no prior involvement where the same Appeals 

officer handles both a taxpayer’s CDP hearing and OIC rejection appeal. We do not agree with respondent’s interpretation 

of Gravette. In Gravette the taxpayer completed an OIC as a 

collection alternative to be considered during the course of a 

CDP hearing that had been requested by the taxpayer and 

that had commenced before the submission of the OIC. Id., 

2011 WL 2490647, at *2. Although the OIC was forwarded 

194 142 UNITED STATES TAX COURT REPORTS (183) 

10We note that respondent could have transferred petitioner’s OIC appeal from Ms. Smeck to Ms. Kane, which would have ensured that petitioner’s OIC was reviewed pursuant to the specific authority to do so pursuant to sec. 6330(c)(2)(A)(iii) during the course of her CDP hearing with 

Ms. Kane, who would not have had any ‘‘prior involvement’’ with petitioner’s unpaid tax liabilities for the periods in issue outside the context 

of the CDP hearing. 

to an offer examiner for initial review, rejected by that examiner, and then appealed for review by the Appeals officer 

handling the CDP hearing, id. at *2–*3, this Court found 

that there was no prior involvement because the Appeals 

officer’s participation in the OIC review was entirely 

within the context of the CDP hearing, id. at *6. Section 

6330(c)(2)(A)(iii) specifically provides that the CDP hearing 

issues may include, among other matters, an offer-in-compromise. In the instant case, unlike the Appeals officer in 

Gravette, Ms. Smeck initiated her review of petitioner’s 

rejected OIC before she was assigned to handle petitioner’s 

CDP hearing. Unlike the OIC appeal taxpayer in Gravette, 

petitioner’s OIC appeal was an administrative proceeding 

that was separate from the CDP hearing. Accordingly, we 

conclude that Gravette is inapplicable to the facts before 

us. 10

Thirdly, respondent contends that the purpose of section 

6320(b)(3) is to prevent an Appeals officer from examining a 

taxpayer’s underlying liability during the examination function and then handling a CDP hearing involving the same 

liability during the enforcement function, because the officer’s evaluation of the liability might bias his or her determination of whether the unpaid liability is collectible. However, respondent explains, the bias is not present where the 

officer is faced solely with the question of whether the tax is 

collectible, i.e., whether the taxpayer is able to pay outstanding liabilities, and therefore, that Ms. Smeck’s concurrent handling of petitioner’s rejected OIC and CDP hearing 

does not run afoul of the section 6320(b)(3) prohibition 

against prior involvement because both matters involved an 

evaluation of petitioner’s ability to pay the unpaid tax liabilities for the periods in issue. We disagree with respondent’s 

contention. It is well established that ‘‘in the absence of a 

‘clearly expressed legislative intention to the contrary’, the 

language of the statute itself ‘must ordinarily be regarded as 

(183) MOOSALLY v. COMMISSIONER 195

conclusive’.’’ Burlington N. R.R. Co. v. Okla. Tax Comm’n, 

481 U.S. 454, 461 (1987) (quoting United States v. James, 

478 U.S. 597, 606 (1986)). An agency may not read ambiguity 

into a statute in order to reach a practical result. See Joint 

Admin. Comm. of Plumbing & Pipefitting Indus. in Detroit 

Area v. Washington Grp. Int’l, 568 F.3d 626, 632 (6th Cir. 

2009) (‘‘[A]gencies have no authority to modify a statute’s 

unambiguous meaning[.]’’); Patterson Trust v. United States, 

729 F.2d 1089, 1095 (6th Cir. 1984) (‘‘[T]he agency may not 

so interpret the statute as to controvert its plain and 

unambiguous language[.]’’); see also Harris v. Olszewski, 442 

F.3d 456, 466 (6th Cir. 2006) (‘‘ ‘[T]he court, as well as the 

agency, must give effect to the unambiguously expressed 

intent of Congress.’ ’’ (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–843 (1984))). 

In the instant case, the statute clearly provides that the 

officer handling the CDP hearing shall have had no prior 

involvement with respect to the unpaid tax liabilities in 

issue. See sec. 6320(b)(3). Although Congress intended an 

exception to the section 6320(b)(3) restriction where a taxpayer requests a lien CDP hearing pursuant to section 6320 

and a pre-levy CDP hearing pursuant to section 6330, it did 

not provide for or express an exception for all matters concerning the taxpayer’s ability to pay. See H.R. Conf. Rept. 

No. 105–599, supra at 266, 1998–3 C.B. at 1020. Moreover, 

when the relevant regulations covering section 6320(b)(3) 

were amended in 2006, the Department of the Treasury 

sought, inter alia, ‘‘to eliminate the potential interpretation 

that there is a distinction between liability and collection 

issues in determining prior involvement.’’ T.D. 9290, 2006–2 

C.B. 879, 881. Accordingly, we conclude that section 

6320(b)(3) does not contemplate a permissive interpretation 

excepting all matters concerning the taxpayer’s ability to 

pay. 

Respondent also contends that taxpayers benefit from combining appeals of rejected OICs with CDP hearings because 

it would allow for judicial review of an OIC submitted outside the context of a CDP hearing. There is no question that 

this Court is a court of limited jurisdiction. See Logan v. 

Commissioner, 86 T.C. 1222, 1226 (1986). Our jurisdiction is 

precisely circumscribed by statute, and we may not enlarge 

upon that statutory jurisdiction. Sec. 7442; Logan v. CommisVerDate Mar 15 2010 12:15 Apr 28, 2015 Jkt 000000 PO 00000 Frm 00013 Fmt 3857 Sfmt 3857 V:\FILES\BOUNDV~1.WIT\BV864A~1.142\MOOSALLY JAMIE
196 142 UNITED STATES TAX COURT REPORTS (183) 

11Moreover, we note that, even if respondent were correct that taxpayers 

benefit from judicial review of an OIC submitted outside the CDP context, 

we are in no position in the instant case to evaluate whether that benefit 

would be greater than the benefit of an independent review of a taxpayer’s 

collection alternatives by an impartial officer pursuant to sec. 6320(b)(3). 

sioner, 86 T.C. at 1226; see also Naftel v. Commissioner, 85 

T.C. 527, 529 (1985). Currently, our jurisdiction to review 

rejection of a taxpayer’s OIC is limited to situations in which 

the taxpayer submits an OIC as a collection alternative 

during the course of a CDP hearing pursuant to section 

6330(c)(2)(A)(iii), receives a notice of determination as a 

result of that CDP hearing, and then petitions this Court for 

review of that determination pursuant to section 6330(d)(1). 

Respondent, in effect, is asking us to legislate changes in the 

statute as enacted by Congress to expand the scope of this 

Court’s jurisdiction. The power to legislate is exclusively the 

power of Congress and not of this Court. See Iselin v. United 

States, 270 U.S. 245, 250–251 (1926). The Court may not 

‘‘ ‘revise the language of the statute as interpreted by the 

Treasury to achieve what might be perceived to be better tax 

policy ’.’’ FleetBoston Fin. Corp. v. United States, 68 Fed. Cl. 

177, 188 (2005) (quoting Marsh & McLennan Cos. v. United 

States, 302 F.3d 1369, 1381 (Fed. Cir. 2002)). While 

respondent may perceive the result to be harsh, we cannot 

ignore the plain language of the statute, and in effect, 

rewrite the statute to achieve what respondent concludes 

may be a more equitable result. Eanes v. Commissioner, 85 

T.C. 168, 171 (1985); see also Badaracco v. Commissioner, 

464 U.S. 386, 398 (1984) (‘‘Courts are not authorized to 

rewrite a statute because they might deem its effects susceptible of improvement.’’). 11

On the basis of the record before us, we conclude that Ms. 

Smeck’s review of petitioner’s rejected OIC for her unpaid tax 

liabilities for the periods in issue constituted ‘‘prior involvement’’ pursuant to section 301.6320–1(d)(2), A–D4, Proced. & 

Admin. Regs. Accordingly, we hold that Ms. Smeck was not 

an impartial officer pursuant to section 6320(b)(3) and that 

respondent did not fulfill his statutory duty to provide petitioner with a ‘‘fair’’ CDP hearing pursuant to section 6320(b). 

Consequently, petitioner is entitled to a new CDP hearing 

before an impartial Appeals officer in accordance with section 

6320(b) and we will, therefore, exercise our discretion to 

(183) MOOSALLY v. COMMISSIONER 197

remand the instant proceedings to the Appeals Office for that 

purpose. On the basis of the foregoing, we need not address 

at this time the issue of whether respondent may proceed 

with collection of petitioner’s unpaid tax liabilities for the 

periods in issue. 

In reaching these holdings, we have considered all the parties’ arguments, and, to the extent not addressed herein, we 

conclude that they are moot, irrelevant, or without merit. 

To reflect the foregoing, 

f 

An appropriate order will be issued.