T.C. Memo. 2011-67

UNITED STATES TAX COURT

LARRY E. TUCKER, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3165-06L. Filed March 22, 2011.

P filed income tax returns for 2000, 2001, and

2002 that reported tax due; but he did not pay the tax. 

In early 2003, when P’s tax liabilities totaled at

least $14,945, P used $44,700 for day trading and lost

$22,645. The Internal Revenue Service assessed the tax

and issued to P a notice of the filing of a “Notice of

Federal Tax Lien” (NFTL). After an initial hearing and

an adverse determination, P filed a timely appeal of

that determination with the Tax Court pursuant to

I.R.C. sec. 6330(d)(1), contending that the Office of

Appeals improperly rejected an offer-in-compromise

(OIC) that P proposed. This Court ordered a remand to

the Office of Appeals for further consideration of P’s

OIC. At a supplemental collection due process hearing,

the Office of Appeals preferred a partial payment

installment agreement but P proposed only his OIC. In

calculating P’s reasonable collection potential for

purposes of evaluating his OIC, the Office of Appeals

considered P’s day trading to constitute asset

dissipation. The Office of Appeals issued a
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supplemental notice of determination denying P’s

proposed OIC and upholding the filing of the NFTL. The

parties have filed cross-motions for summary judgment.

Held: Where P engaged in day trading in disregard

of his outstanding Federal income taxes, the resulting

losses constitute dissipation of assets. R’s Office of

Appeals did not abuse its discretion in denying P’s

proposed OIC and upholding the filing of the NFTL.

Carlton M. Smith and Zachary Grendi (student), for

petitioner.

Lydia A. Branche, for respondent.

MEMORANDUM OPINION

GUSTAFSON, Judge: This case is an appeal, pursuant to

section 6330(d)(1),1 by which petitioner Larry E. Tucker seeks

this Court’s review of a determination by the Office of Appeals

of the Internal Revenue Service (IRS) to reject Mr. Tucker’s

proposed offer-in-compromise (OIC) and to sustain the filing of a

notice of Federal tax lien (NFTL) in order to collect

Mr. Tucker’s unpaid income taxes for tax years 2000, 2001, and

2002. That determination was made after the Office of Appeals

conducted a collection due process (CDP) hearing pursuant to

section 6330(c) and a supplemental CDP hearing pursuant to a

remand of this Court. The IRS’s determination at issue in this

1Unless otherwise indicated, all section references are to

the Internal Revenue Code (“Code”, 26 U.S.C.) and all Rule

references are to the Tax Court Rules of Practice and Procedure.
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case is reflected in an initial “Notice of Determination

Concerning Collection Action(s) Under Section 6320 and/or 6330”

and in a “Supplemental Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330”. This

matter is currently before this Court on the parties’ crossmotions for summary judgment filed under Rule 121. 

The specific issue to be decided is whether the Office of

Appeals abused its discretion in September 2006--at a time when

Mr. Tucker owed more than $39,000--by rejecting an OIC pursuant

to which Mr. Tucker would have paid $317 over 116 months,

totaling $36,772. We will grant respondent’s motion and deny

Mr. Tucker’s motion. We hold that the Office of Appeals did not

abuse its discretion in rejecting Mr. Tucker’s OIC and sustaining

the filing of the NFTL.

Background

The parties’ motion papers and the supporting exhibits

attached thereto show that there is no dispute as to the

following facts. At the time he filed his petition, Mr. Tucker

resided in New Mexico.

Mr. Tucker’s tax returns

Mr. Tucker earned income in the five years 1999 through

2003. For the first three of those years Mr. Tucker failed to
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timely file tax returns. For the years at issue2–-2000, 2001,

and 2002--he simultaneously filed Forms 1040, “U.S. Individual

Income Tax Return”, on April 15, 2003.3 In March 2004 he filed

an untimely Form 1040 for tax year 1999. And in April 2004 he

timely filed a Form 1040 for tax year 2003. For 2000 through

2003, some but not all of his tax liabilities were either prepaid

or withheld from his wages. The IRS assessed the income tax

liabilities that Mr. Tucker had self-reported. After the

application of prepayment and withholding credits, Mr. Tucker had

2The IRS’s notice of determination at issue referred to

liabilities for only three years--2000, 2001, and 2002--and this

Court lacks jurisdiction to review collection of the liabilities

for the years not included in the notices of determination. See

Sullivan v. Commissioner, T.C. Memo. 2009-4. However, as is

explained below, the OIC that Mr. Tucker submitted in his CDP

hearing addressed five years--1999 through 2003. In determining

whether the rejection of the OIC and the collection of

liabilities for the years included in the notices of

determination is appropriate, this Court is authorized (as the

settlement officer was required) to consider “any relevant issue

* * * including * * * offers of collection alternatives”. Sec.

6330(c)(2)(A), (d). Therefore, we evaluate the settlement

officer’s exercise of discretion in rejecting the OIC, taking

into account all the liabilities that were proposed to be

compromised, even though we do not have jurisdiction to review

the collection of all those liabilities. See, e.g., Orum v.

Commissioner, 123 T.C. 1 (2004) (reviewing an OIC that covers

income tax liabilities for tax years that are both within and

outside of this Court’s jurisdiction), affd. 412 F.3d 819 (7th

Cir. 2005). 

3In our previous Opinion in this case, Tucker v.

Commissioner, 135 T.C. 114, 117 (2010), we mistakenly stated that

Mr. Tucker untimely filed all of these returns in June 2003. The

transcripts of Mr. Tucker’s accounts show that, while these

returns were not processed by the IRS until June 2003, they were

received by the IRS on April 15, 2003. These filings were

therefore timely as to 2002 but untimely as to 2000 and 2001.
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an outstanding reported tax due (not including any interest or

penalties) for each year as follows:

Tax Year

Income Tax

Reported

Withholding

Credits

Reported Tax 

Liability Due

1999 $3,356 -0- $3,356

2000 14,808 ($6,702) 

18,106 

2001 3,629 (146) 3,483

2002 13,404 (10,353) 3,051

2003 6,947 (633) 6,314 

 Total 24,310 

 1After filing his return for tax year 2000, Mr. Tucker made

three voluntary payments of $349 towards the amount due. As a

result, by July 2004, when the collection action at issue

started, the tax due for 2000 (without any accruals) was

reduced to $7,059, and the tax due for all five years (without

any accruals) was reduced to $23,263. 

On May 8, 2004, nearly a year after Mr. Tucker filed his

returns for 2000, 2001, and 2002, the IRS sent to him a “Final

Notice--Notice of Intent to Levy and Notice of Your Right to a

Hearing” (hereinafter, “levy notice”) for those three years,

pursuant to sections 6330(a)(1) and 6331(d)(1), advising him of

the IRS’s intent to levy upon his property. Mr. Tucker did not

timely request a hearing under section 6330 with respect to that

notice. For the same three years, the IRS sent to Mr. Tucker on

July 22, 2004, a “Notice of Federal Tax Lien Filing and Your

Right to a Hearing Under IRC 6320” (“lien notice”), pursuant to

section 6320(a)(1), advising him that the IRS had filed an NFTL

against him.
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Mr. Tucker’s July 2004 OIC

On July 29, 2004, after the IRS had issued the lien notice,

but before Mr. Tucker received it, he submitted a Form 656,

“Offer in Compromise”, proposing to settle his income tax

liabilities for the five years 1999 through 2003. At that time,

his unpaid tax liabilities for those five years totaled $24,310,

and with interest and additions to tax (“accruals”), his total

five-year liability was approximately $35,000.4 Mr. Tucker

proposed to compromise that five-year liability for a total of

$6,000 payable in monthly payments of $100 over 60 months.

Mr. Tucker also submitted a Form 433-A, “Collection Information

Statement for Wage Earners and Self-Employed Individuals”,

detailing his assets, monthly income, and monthly expenses.

The IRS received Mr. Tucker’s July 2004 OIC on August 4,

2004. By letter dated August 25, 2004, the IRS examiner who 

evaluated the July 2004 OIC informed Mr. Tucker that the IRS had

“determined that you have the ability to pay your liability in

4The record reflects that Mr. Tucker’s outstanding

liabilities with accruals through August 16, 2004, were

$35,591.26, so we estimate his total outstanding liabilities

(i.e., unpaid taxes plus accruals) as of July 29, 2004 (i.e.,

less than one month earlier), to be approximately $35,000.
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full within the time provided by law.”5 Mr. Tucker was given 14

days to dispute this determination. 

At the same time the IRS was evaluating Mr. Tucker’s

July 2004 OIC, Mr. Tucker timely submitted to the IRS on

August 11, 2004, a Form 12153, “Request for a Collection Due

Process Hearing”, in response to the lien notice. In the

attachment to Form 12153, Mr. Tucker expressed his desire for an

OIC in the CDP context by stating that “on July 29, 2004, the

taxpayer mailed to the IRS an offer in compromise covering these

taxes and taxes for the years 1999 and 2003. An offer in

compromise would be the sensible collection alternative to this

lien.” Because of the close timing of Mr. Tucker’s submission of

5This August 2004 determination that Mr. Tucker could fully

pay his income tax liabilities--a determination not important to

the outcome of this case--was made by comparing Mr. Tucker’s

then-current liabilities (i.e., $35,591.26 with accruals through

August 16, 2004) to his total ability to pay (which was reckoned

to be $609,680.73). Included in the IRS’s calculation of

Mr. Tucker’s total ability to pay was $558,176.80 in dissipated

assets from stock transactions, representing $697,721 discounted

by 20 percent for quick sale purposes. The $697,721 represents

the largest amount of stock sales Mr. Tucker had, in the

aggregate, on any one day (i.e., February 3, 2003). We assume

that the examiner concluded that if he had sales in that amount

on that day, then he must have had cash in hand in that amount on

that day; but if the examiner so concluded, she evidently failed

to offset the proceeds by corresponding liabilities arising from

margin purchases. It seems unlikely that Mr. Tucker had $697,721

of proceeds from his day trading in hand at any one time. In any

event, before any determination was issued in this case, the OIC

examiner abandoned the position that Mr. Tucker had dissipated

$558,176.80 in stocks. As is set out below, the Appeals Office

subsequently determined that Mr. Tucker had dissipated assets in

a much smaller amount--$22,645.
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the July 2004 OIC and his August 2004 request for a CDP hearing,

there was some confusion as to who (i.e., the original OIC

examiner or the CDP settlement officer) should continue to

consider Mr. Tucker’s July 2004 OIC. As a result, there is some

dispute as to whether Mr. Tucker ever disputed the financial

determination outlined in the letter dated August 25, 2004, and

whether his July 2004 OIC was rejected by the IRS before his case

was assigned to a settlement officer. In any event, by letter

dated May 19, 2005, from Mr. Tucker’s counsel to the settlement

officer assigned to Mr. Tucker’s case, Mr. Tucker’s counsel

effectively withdrew Mr. Tucker’s July 2004 OIC and indicated his

desire for an installment agreement instead:

Per your request, enclosed is the offer in compromise filed

by Larry Tucker on July 29, 2004--i.e., prior to the IRS’

issuance of collection due process notices.[6] I am also

enclosing the Form 433-A filed at that time, together with

its enclosures. Please note that we have since realized

that the offer to pay $6,000 in the form of 60 monthly

payments of $100 was a mistake in that the IRS requires that

offers being paid in over two-year periods be payable over

the entire collection period--which in this case is closer

to ten years, since the offer was filed only a few months

6For clarification, Mr. Tucker’s submission of the July 2004

OIC on July 29, 2004, was after the July 22, 2004, issuance of

the lien notice by the IRS, but before Mr. Tucker received it. A

“Final Notice--Notice of Intent to Levy and Notice of Your Right

to a Hearing” relating to tax years 1999 and 2003 was, in fact,

issued after Mr. Tucker’s submission of the July 2004 OIC. 

Section 6331(k)(1) provides for a restraint on levy while an OIC

is pending, and the issuance of the notice of levy violated that

restriction. As a result, the IRS withdrew this levy notice

against Mr. Tucker. The issuance of that first levy notice (and

its subsequent withdrawal) was not part of the CDP hearing or

determination and is not part of the CDP appeal at issue here.
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after the 2003 return was filed. Mr. Tucker is willing to

make payments over the entire collection period remaining.

 * * * * * * *

* * * [Mr. Tucker’s] income can be more variable than the

usual taxpayer. This may make an offer in compromise

unfeasible, since a brief period of unemployment could

result in the offer going into default and having to be

completely redone. Perhaps a more sensible situation would

be for us together to determine a full or partial payment

installment payment arrangement for Mr. Tucker, which might

be modified in the future as his circumstances change. 

Using the collection financial standards, we together could

come to an amount. * * *

In this same letter, Mr. Tucker’s counsel also addressed the

issue that the original OIC examiner raised regarding dissipation

of assets. In doing so, Mr. Tucker’s counsel referred the

settlement officer to his letter dated April 26, 2005, which had

been submitted to the Office of Appeals before the settlement

officer was assigned to Mr. Tucker’s case. In that April 26,

2005, letter, Mr. Tucker’s counsel had summarized Mr. Tucker’s

stock transactions as follows:

In January 2003, Mr. Tucker received payment in advance

for some independent contractor web design project to be

performed by him later in the year. He knew he would need

this money to live on during the year, but he also knew he

owed taxes and other creditors. In retrospect unwisely, he

decided to try to leverage currently-unneeded funds[7] into

profits by which he could pay off his back tax debts and

7Mr. Tucker’s counsel characterized as “currently-unneeded”

the funds that Mr. Tucker could have used to pay his overdue

liabilities for the years 1999 through 2001. Presumably he made

that characterization because Mr. Tucker had not yet filed

returns for those years. If that was his reasoning, then it was

not correct. See the text accompanying note 12 below, discussing

liabilities that were actually then due.
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other creditors. So, he wire transferred some of the funds

from his checking account to a newly-opened E-Trade account

between January 10, 2003 and April 3, 2003. During January,

he put $23,700 into the E-Trade account. Then, he began day

trading. By the end of January, he showed a small profit,

since the account was valued at $25,873.16 on January 31, 

2003. From there, however, everything went south.

The E-Trade account lost $7,123.12 in value in February

2003. It continued losing money in March. So, starting on

March 13, 2003, Mr. Tucker received “margin calls”. 

Mr. Tucker was trading on margin - i.e, borrowing part of

the money to trade from the brokerage firm. As the account

declined in value, the brokerage firm insisted that

Mr. Tucker put additional funds into the [E-Trade] account

so that the margin borrowing did not exceed a certain

percentage of the value of the account. If Mr. Tucker did

not comply with these “margin calls”, the brokerage firm

would sell all the stocks in the account. So, from March

13, 2003 to April 3, 2003, Mr. Tucker put, in aggregate,

$21,000 into the E-Trade account.

By mid-April, 2003, Mr. Tucker gave up on trading. He

had lost $22,645 through his trading between January 10 and

April 21. His last account position was liquidated on April

21, 2003. At that point, the E-Trade account had about

$22,000 in cash in it and no securities. Between May 2,

2003 and October 27, 2003, Mr. Tucker gradually transferred

money from the E-Trade account back to his checking account

to pay his rent and other bills. In all, he transferred

$18,503 between accounts in that period. At the same time,

since the E-Trade account came with a debit card, he charged

various personal expenses to thee-Trade [sic] account,

approximating $3,500 in all. By October 27, 2003, the

account was left with only 79 cents in it.

So, Mr. Tucker did not dissipate anywhere near the

$697,721 determined by * * * [the original OIC examiner] -

merely $22,645. And he did this in a good faith attempt to

repay his taxes. [Emphasis added.]

In her case activity records for May 27, 2005, the settlement

officer observed: “POA [i.e., Mr. Tucker’s “power of attorney”]

admits that at least $22,645.00 in assets was dissipated. This

amount must be added to RCP [reasonable collection potential]. 
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I/A [installment agreement] might be more appropriate unless FP

[full payment] is possible.”

CDP hearing

The CDP hearing was held as a telephone conference on

May 31, 2005, between the IRS settlement officer and Mr. Tucker

and his counsel. During the conference Mr. Tucker’s counsel

reiterated that Mr. Tucker was no longer pursuing the July 2004

OIC proposing payments totaling $6,000 since circumstances had

changed. Furthermore, Mr. Tucker’s counsel advised that

Mr. Tucker was not asserting that the lien filed against him had

to be removed, but rather Mr. Tucker was hoping to find an

installment payment arrangement that he could live with. 

Following the May 31 telephone CDP hearing, numerous letters were

exchanged between the settlement officer and Mr. Tucker’s

counsel: 

On June 8, 2005, Mr. Tucker submitted a revised page 6 of

the Form 433-A to reflect new financial figures for his monthly

income and expenses. This revised form demonstrated that

Mr. Tucker had excess income over allowable living expenses of

$326 per month. In the June 8, 2005, cover letter accompanying

the updated financial information, Mr. Tucker’s counsel advised

the settlement officer that “Mr. Tucker would be prepared to

enter into an installment payment arrangement to pay the IRS $326

a month.” In response, by letter dated June 20, 2005, the
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settlement officer concluded that her “calculations indicate that

the most * * * [Mr. Tucker] would be able to pay is $316.00” per

month. Enclosed with the settlement officer’s letter was a Form

433-D, “Installment Agreement”, filled out by the settlement

officer reflecting a proposed partial payment installment

agreement (PPIA) to pay $316 per month. The settlement officer

invited Mr. Tucker to review the terms of the PPIA and, if

acceptable, sign and return the agreement by July 6, 2005.

On June 23, 2005, Mr. Tucker’s counsel faxed the settlement

officer a letter indicating that Mr. Tucker would prefer an OIC

in lieu of the proposed PPIA, because an OIC would (assuming he

adhered to all of the conditions) fix his liability to the IRS,

whereas the PPIA could be reexamined every two years for possible

increases.8

8See sec. 6159(d) (“In the case of an agreement entered into

by the Secretary * * * for partial collection of a tax liability

[i.e., a PPIA], the Secretary shall review the agreement at least

once every 2 years.”); sec. 7122 (authorizing agreement between a

taxpayer and the Government that fully settles a tax liability

for payment of less than the full amount owed.) But see Internal

Revenue Manual (IRM) pt. 5.8.6 (Sept. 1, 2005) (when accepting an

OIC, the Government may obtain a collateral agreement that

enables the Government to collect funds in addition to the amount

actually secured by the offer). Certain provisions of the IRM

have been revised since the time of Mr. Tucker’s CDP hearing. We

quote the IRM provisions as in effect when the Office of Appeals

made the determination that is under review in this case.
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Mr. Tucker’s July 2005 OIC

Consistent with the suggestion he had made in his June 23

fax, Mr. Tucker’s counsel sent to the settlement officer a

revised OIC dated July 20, 2005. At that time Mr. Tucker’s

liabilities for the five years 1999 through 2003 totaled

approximately $37,000 (with accruals).9 Mr. Tucker proposed to

settle his income tax liabilities for those five years by making

a total of $36,772 in monthly payments of $317 over 116 months

(July 2005 OIC). The offer of $317 per month was intended by

Mr. Tucker to be $1 more than the settlement officer had

previously determined he could pay per month (and was thus

intended to exceed his RCP and thereby warrant acceptance). In a

letter dated November 18, 2005, the settlement officer rejected

Mr. Tucker’s proposed July 2005 OIC. In doing so, the settlement

officer stated, “It is usually not in the Government’s best

interest to accept an offer when there is more than five years

remaining on the collection statute.”

The notice of determination and the commencement of this case

On January 9, 2006, the Office of Appeals issued to

Mr. Tucker a “Notice of Determination Concerning Collection

9The record reflects that Mr. Tucker’s total outstanding tax

liability with accruals through August 16, 2004, was $35,591.26,

and his total liability with accruals through October 16, 2006,

was $39,790.19. We therefore estimate his total outstanding

liability as of July 20, 2005 (between those two dates), to be

approximately $37,000.
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Action(s) under Section 6320 and/or 6330”, in which Appeals

determined to uphold the filing of the NFTL as to Mr. Tucker’s

income tax liabilities for 2000, 2001, and 2002. In response,

Mr. Tucker timely filed a petition with this Court on February

13, 2006.

Previous Tax Court proceedings, remand to the Office of Appeals,

and supplemental notice of determination

After filing his petition, Mr. Tucker filed a motion for

summary judgment on June 9, 2006. Respondent opposed that motion

and filed a motion for remand on July 17, 2006, stating that

“[t]he settlement officer erred as a matter of law in

rejecting petitioner’s offer for the stated reason that amendment

of I.R.C. § 6159 to permit partial payment installment agreements

renders obsolete deferred payment offers in compromise.” By our

order of July 27, 2006, we denied Mr. Tucker’s motion for summary

judgment and granted respondent’s motion to remand the case to

the IRS’s Office of Appeals “for an officer to exercise

discretion in consideration of * * * [Mr. Tucker’s] offer” and

for issuance of a supplemental notice of determination no later

than October 16, 2006.

The Office of Appeals then assigned a settlement officer

(i.e., a different settlement officer from the one who had

conducted Mr. Tucker’s initial CDP hearing) to conduct a

supplemental CDP hearing and to reconsider Mr. Tucker’s July 2005

OIC. The supplemental CDP hearing was held as a telephone
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conference on September 11, 2006, between the settlement officer

and Mr. Tucker’s counsel. On September 12, 2006, the Office of

Appeals issued a “Supplemental Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330”, which

determined to reject Mr. Tucker’s July 2005 OIC and to uphold the

filing of the NFTL as to Mr. Tucker’s income tax liabilities for

2000, 2001, and 2002. The attachment to the supplemental notice

of determination stated, inter alia:

Issues Raised by the Taxpayer

In an attachment to Form 12153, * * * [counsel] stated that

you were unable to full pay the balances due based on

sporadic employment and medical concerns and believe that an

offer in compromise would be a sensible alternative to the

lien. You submitted a long term deferred offer in the

amount of $6,000.00 to compromise 1999, 2000, 2001, 2002,

and 2003 1040 return balances. You subsequently amended

your offer to $36,772.00. You owe $39,790.19 with accruals

to 10/16/2006.

In response:

1. An offer is not an alternative to the filing of a NFTL. 

It is an alternative to the issuance of a levy or

garnishment. Internal Revenue Manual (IRM) Section 5.8.4.9

requires that a NFTL be considered when reviewing an offer

in compromise. This section does not require the filing of

a NFTL but they are routinely filed on offers that have been

accepted but will not be paid within 24 months in order to

protect the government’s interest in any assets an

individual may own. Your proposal includes payments over

the course of 116 months.

2. NFTL may not be released until full payment is

received. A taxpayer may qualify for a withdrawal under

circumstances laid out in IRC Section 6323(j) if the filing

of the lien was premature or otherwise not in accordance

with legal and administrative procedures, at the time a

taxpayer entered into an installment agreement, he or she

was not notified that a lien would be filed, withdrawal of
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the lien would facilitate collection, and hardship

situations (this determination is normally made by the

Taxpayer Advocate rather than Appeals). As stated above,

all legal or procedural requirements have been met. You

have no installment agreement precluding the filing of the

NFTL. The documents in the administrative file indicate

that you want to pay the debts over 116 months based on your

income. You site [sic] no other sources for funding the

offer. Therefore, withdrawal of the lien would not

facilitate collection by, for example, enabling you to get a

loan to full pay the balance or gain business to speed up

collection. Furthermore, in the response to the motion for

summary judgment, you indicated that you did not request the

NFTL be “removed”.

3. Internal Revenue Manual (IRM) Section 5.8.1.4(1) lists

four objectives of the offer in compromise program including

to effect collection of what can reasonably be collected at

the earliest possible time and at the least cost to the

government, achieve a resolution that is in the best

interest of both the individual taxpayer and the government,

provide a taxpayer a fresh start toward future voluntary

compliance with all filing and paying requirements, and

secure collection of revenue that may not be collected

through any other means. * * * [The previous settlement

officer] offered to negotiate a shorter term offer that

would accomplish all these objectives. A long term deferred

offer may also accomplish these objectives but it also

raises the possibility of a part payment installment

agreement (PPIA). Appeals is required to consider all

collection alternatives raised but is not required to accept

an alternative that it believes will not be in the best

interest of the taxpayer AND the government (emphasis

added).

4. Appeals still does not believe a long term deferred

offer is a better alternative to a PPIA because the Service

still has to collect and monitor payments for the next 116

months and unlike a long term deferred offer, the payments

on a PPIA are negotiable. IRS Section 6159 requires that

PPIAs be reviewed every two years. If there are increases

to a taxpayer’s income or equity in assets, then the

taxpayer is required to increase the amount of the payments,

liquidate the equity, and if the income and equity is

sufficient enough, full pay the debts. If the taxpayer does

not comply, the Service can terminate the PPIA. The bottom

line, in the amount of time it takes to monitor your long

term deferred offer, the Service can review a PPIA no less
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than four times, which may in fact result in an amount

greater than what is offered and even full payment.

5. There is reason to believe the Service would collect

more from a PPIA over the next 116 months based on the

documentation in the administrative file and information

available from internal sources. You are 45-years old, your

diabetes is being controlled by medication and you are not

receiving disability for this or any other ailments, and you

are gainfully employed. Your employment history also

indicates you have the ability to earn great sums of money. 

For instance, in 2003, you purchased and sold almost $7

million in stocks (you purchased more than $3.4 million in

stocks and sold just about the same amount for which you

ultimately claimed a loss on your 2003 1040 return).

6. Upon review, * * * [this settlement officer] believes

that the stock sales are dissipated assets and believes the

amounts dissipated should be included in a minimum offer

calculation. As such, the minimum offer is actually full

payment. These stock transactions in 2003 occurred * * *

[after] the due dates of the 1999, 2000, and 2001 1040

returns. If you simply sold a little less than you bought,

which was your option, you could have already paid the taxes

in full. 

Mr. Tucker’s motion to remand and the parties’ cross-motions for

summary judgment

On November 21, 2006, in response to the supplemental notice

of determination, Mr. Tucker filed an amendment to petition with

this Court in order to challenge the determination in the

supplemental notice of determination. In his amendment to

petition, Mr. Tucker asserted that the Office of Appeals erred

by: (1) determining that Mr. Tucker’s offer was not in

respondent’s best interest; (2) determining that a PPIA was a

better alternative to the OIC that Mr. Tucker proposed;

(3) determining that there was reason to believe that

Mr. Tucker’s income or assets would increase in the future, such
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that the IRS would collect more from a PPIA than from the OIC;

(4) determining that Mr. Tucker’s stock sales in 2003 constituted

“dissipated assets”; (5) raising the dissipated assets issue in

the supplemental notice of determination because it went beyond

the scope of the remand order, as the issue was not raised in the

original notice of determination; (6) determining that “there is

no law or policy that requires the Service to accept an offer”;

and (7) determining that “the cost it takes to monitor your long

term deferred offer for 116 months would be similar to the cost

it would take to monitor a part payment installment agreement”.10

On November 29, 2007, respondent filed a motion for summary

judgment asking the Court to sustain the supplemental notice of

determination. Mr. Tucker filed a cross-motion for summary

judgment on February 27, 2008, and filed a motion for remand on

September 2, 2008. Mr. Tucker’s motion to remand was previously

denied in Tucker v. Commissioner, 135 T.C. 114 (2010), and we now

address the parties’ cross-motions for summary judgment.

10Mr. Tucker also contended that the Office of Appeals

failed to afford him his statutory right to a hearing, in that he

was denied a hearing before an appeals officer appointed pursuant

to the Appointments Clause in Article II of the Constitution. We

rejected this contention in Tucker v. Commissioner, 135 T.C. 114

(2010).
-19-

Discussion

I. Applicable legal principles

A. Summary judgment standards

Where the pertinent facts are not in dispute, a party may

move for summary judgment to expedite the litigation and avoid an

unnecessary trial. Summary judgment may be granted where there

is no genuine issue as to any material fact and a decision may be

rendered as a matter of law. Rule 121(a) and (b). Since we will

grant respondent’s motion for summary judgment, we will focus on

respondent as the movant. The party moving for summary judgment

(i.e., respondent) bears the burden of showing that there is no

genuine issue as to any material fact, and factual inferences

will be drawn in the manner most favorable to the party opposing

summary judgment (i.e., Mr. Tucker). Dahlstrom v. Commissioner,

85 T.C. 812, 821 (1985). 

B. Collection review procedure

When a taxpayer fails to pay any Federal income tax

liability after demand section 6321 imposes a lien in favor of

the United States on all the property of the deliquent taxpayer,

and section 6323 authorizes the IRS to file notice of that lien. 

However, the IRS must provide written notice of a tax lien filing

to the taxpayer within five business days. After receiving such

a notice, the taxpayer may request an administrative hearing

before the Office of Appeals. Sec. 6320(a)(3)(B), (b)(1). 
-20-

Administrative review is carried out by way of a hearing before

the Office of Appeals pursuant to section 6330(b) and (c); and,

if the taxpayer is dissatisfied with the outcome there, he can

appeal that determination to the Tax Court under section 6330(d),

as Mr. Tucker has done.

For the agency-level CDP hearing before the Office of

Appeals, the pertinent procedures are set forth in section

6330(c):

First, the IRS appeals officer must obtain verification from

the Secretary that the requirements of any applicable law or

administrative procedure have been met. Sec. 6330(c)(1).11 The

supplemental notice of determination and respondent’s motion set

forth the IRS’s compliance with these requirements; however, in

his petition at paragraph 4(m) and (n), Mr. Tucker called into

question the accuracy of the filing date of the NFTL reflected on

the lien notice:

m. On July 13, 2004, respondent prepared a notice of 

federal tax lien against petitioner for his 2000, 2001,

and 2002 taxes. Respondent filed the notice of federal

tax lien in Manhattan on August 4, 2004.

n. On July 22, 2004, respondent issued to petitioner a

“Notice of Federal Tax Lien Filing and Your Right to a

11In the case of the lien filed against Mr. Tucker, the

basic requirements, see sec. 6320, for which the appeals officer

was to obtain verification are: a timely assessment of the

liability, secs. 6201(a)(1), 6501(a); notice and demand for

payment of the liability, sec. 6303; and notice of the filing of

the lien and of the taxpayer’s right to a CDP hearing, sec.

6320(a) and (b).
-21-

Hearing Under IRC 6320” for the years 2000, 2001, and 

2002, erroneously stating that the Notice of Federal

Tax Lien had been filed on July 15, 2004.

While Mr. Tucker concedes that the IRS issued to him a lien

notice for tax years 2000, 2001, and 2002 on July 22, 2004, he

disputes whether the NFTL was filed on July 15, 2004 (as

reflected in the lien notice), or August 4, 2004 (as reflected on

the website of the New York City Department of Finance). We find

it unnecessary to resolve this issue, for the following reasons. 

Under section 6320(a), the Secretary is required to send

written notice to the taxpayer liable for the tax “not more than

5 business days after the day of the filing of the notice of

lien.” Whether the NFTL was filed on July 15, 2004, or August 4,

2004, the IRS sent notice of the filing to Mr. Tucker on July 22,

2004, which was “not more than 5 business days after” July 15,

2004, or August 4, 2004. There is no rule that the requisite

notice cannot be sent before the filing of the NFTL. Therefore,

even if the NFTL was filed on August 4, 2004, the lien notice

that Mr. Tucker received on July 22, 2004, was still timely under

section 6320(a). Mr. Tucker has raised no other verification

issues under section 6330(c)(1), and we find no failure of

verification.

Second, the taxpayer may “raise at the hearing any relevant

issue relating to the unpaid tax or the proposed levy,” including

challenges to the appropriateness of the collection action and
-22-

offers of collection alternatives. Sec. 6330(c)(2)(A). 

Mr. Tucker’s principal contention--that the IRS Office of Appeals

abused its discretion in not accepting his OIC--pertains to that

second set of issues, which we will discuss below.

Additionally, the taxpayer may contest the existence and

amount of the underlying tax liability if he did not receive a

notice of deficiency or otherwise have a prior opportunity to

dispute the tax liability. Sec. 6330(c)(2)(B). While Mr. Tucker

did not have any prior opportunity to challenge his underlying

self-reported liabilities, he did not make such a challenge

during his CDP hearing or before this Court. Therefore, we find

Mr. Tucker’s underlying tax liabilities for 2000, 2001, and 2002

are not at issue.

When the Office of Appeals issues its determination, the

taxpayer may “appeal such determination to the Tax Court”,

pursuant to section 6330(d)(1), as Mr. Tucker has done. In such

an appeal (where the underlying liability is not at issue), we

review the determination of the Office of Appeals for abuse of

discretion. That is, we decide whether the determination was

arbitrary, capricious, or without sound basis in fact or law. 

See Murphy v. Commissioner, 125 T.C. 301, 320 (2005), affd. 469

F.3d 27 (1st Cir. 2006); Sego v. Commissioner, 114 T.C. 604, 610

(2000); Goza v. Commissioner, 114 T.C. 176 (2000). Because

Mr. Tucker does not dispute the filing of the NFTL as improper,
-23-

our review of the supplemental notice of determination focuses on

whether the Office of Appeals abused its discretion in rejecting

Mr. Tucker’s OIC.

II. Respondent’s entitlement to summary judgment

A. Scope of remand

Mr. Tucker argues that the settlement officer assigned to

his supplemental CDP hearing erred in raising the dissipated

assets issue in the supplemental notice of determination because

it went beyond the scope of the remand order, as the issue was

not raised in the original notice of determination. As a result,

we must decide whether it was proper for the settlement officer

to include dissipated assets in her calculation of Mr. Tucker’s

reasonable collection potential. We hold that it was proper for

her to do so.

Section 6330(c)(2)(A)(iii) permits a taxpayer to propose

collection alternatives to the filing of a Federal tax lien.

Section 4.02(2) of Rev. Proc. 2003-71, 2003-2 C.B. 517, 517,

provides that an OIC based on doubt as to collectibility will be

treated as an acceptable collection alternative only where the

OIC reflects the taxpayer’s reasonable collection potential. 

Where a taxpayer has dissipated assets in disregard of the

taxpayer’s outstanding Federal income taxes, the dissipated

assets may be included in the calculation of the minimum amount
-24-

that is to be paid under an acceptable OIC. Internal Revenue

Manual (IRM) pt. 5.8.5.4(5) (Sept. 1, 2005).

Mr. Tucker is not correct in asserting that the dissipation

issue was not considered by the original settlement officer and

not raised in the original notice of determination. While the

original settlement officer did not articulate her reasons for

denying Mr. Tucker’s OIC (thereby necessitating the remand), her

case activity notes clearly reflect that she considered the issue

of dissipation: “POA admits that at least $22,645.00 in assets

was dissipated. This amount must be added to RCP. I/A might be

more appropriate unless FP is possible.” 

In any event, we do not believe the second settlement

officer’s review was limited to issues raised in the original

notice of determination. By its order of July 27, 2006, this

Court granted respondent’s motion to remand this case to the

IRS’s Office of Appeals “for an officer to exercise discretion in

consideration of * * * [Mr. Tucker’s] offer”. We thus ordered

the Office of Appeals to consider Mr. Tucker’s OIC de novo. To

do so, the settlement officer was required pursuant to IRM pt.

5.8.5.4 to consider any dissipated assets in calculating

Mr. Tucker’s reasonable collection potential. Since the

viability of an OIC is contingent on a taxpayer’s reasonable

collection potential, we find that inherent in the consideration

of Mr. Tucker’s OIC was the consideration of dissipated assets. 
-25-

As a result, we hold that the issue of dissipated assets was

properly considered by the settlement officer during the

supplemental CDP hearing, and that consideration of that issue

did not go beyond the scope of our remand order. 

B. Dissipation of assets

Mr. Tucker also argues that the Office of Appeals erred in

determining that his day trading in 2003 constituted a

dissipation of assets. We disagree in part.

A dissipated asset is defined as any asset (liquid or not

liquid) that has been sold, transferred, or spent on nonpriority

items or debts and that is no longer available to pay the tax

liability. Samuel v. Commissioner, T.C. Memo. 2007-312; IRM pt.

5.8.5.4(1). If the OIC examiner determines that assets have been

dissipated with a disregard of an outstanding tax liability, then

the examiner may include the value of the dissipated asset in the

taxpayer’s reasonable collection potential calculation. IRM pt.

5.8.5.4 states:

(1) During an offer investigation it may be discovered

that assets (liquid or non-liquid) have been sold, gifted,

transferred, or spent on non-priority items and/or debts and

are no longer available to pay the tax liability. This

section discusses treatment of the value of these assets

when considering an offer in compromise.

 * * * * * * *

(2) Once it is determined that a specific asset has

been dissipated, the investigation should address whether

the value of the asset, or a portion of the value, should be

included in an acceptable offer amount.
-26-

 * * * * * * *

(5) If the investigation clearly reveals that assets

have been dissipated with a disregard of the outstanding tax

liability, consider including the value in the reasonable

collection potential (RCP) calculation.

Where a taxpayer’s once-held assets have simply vanished, it

makes obvious sense for the tax collector to include the assets

in computing the taxpayer’s reasonable collection potential,

unless the taxpayer can account for them. See Schropp v.

Commissioner, T.C. Memo. 2010-71, slip op. at 24-26, affd.

without published opinion 106 AFTR 2d 2010-7424, 2011-1 USTC par.

50,122 (4th Cir. 2010). However, where a taxpayer can prove that

he really did dissipate the assets (say, by lavish living or

gambling that he substantiates), the long-gone assets cannot be

said to increase his literal collection potential. However, in

that circumstance the IRM nonetheless instructs the Office of

Appeals to “consider” including the assets in RCP. The evident

reason for this rule is to deter delinquent taxpayers from

wasting money that they owe and should pay as taxes. 

Conscientious taxpayers would object--and the system would

suffer--if a noncompliant taxpayer with overdue taxes and with

money in hand could spend his money on “non-priority items” and

nonetheless effectively obtain forgiveness of his liability

simply by proving in the collection context that he really did

reduce his collection potential by wasting the assets. Removing

dissipated assets from “reasonable collection potential” could
-27-

create perverse incentives, and the tax collector must have

discretion to avoid that problem.

Mr. Tucker admittedly deposited $23,700 into an E-Trade

account in January 2003 and made additional deposits totaling

$21,000 between March 13 and April 3, 2003. At the time

Mr. Tucker admittedly deposited funds into his E-Trade account

(i.e., from January to April 3, 2003), he had not yet filed his

income tax returns for tax years 1999 through 2001, which were

then due. Nonetheless, because the due date for those returns

had passed, his tax liabilities had accrued and he had

outstanding tax liabilities (not including any interest or

additions to tax) for tax years 1999, 2000, and 2001 totaling

$14,945 at the time of his deposits.12 Personal income taxes are

due on the date the return is required to be filed. Sec.

6151(a); Holywell Corp. v. Smith, 503 U.S. 47, 58 (1992); Pan Am.

Van Lines v. United States, 607 F.2d 1299, 1301 (9th Cir. 1979). 

Mr. Tucker’s tax liabilities for tax years 2002 and 2003 had not

yet accrued. Mr. Tucker was aware of his unpaid tax obligations

for 1999 through 2001 when he transferred the $44,700 into his ETrade account. Despite having known tax obligations, Mr. Tucker

still transferred the money and for nearly four months engaged in

the highly speculative and volatile activity of day trading.

12The liabilities eventually reported on his returns but not

prepaid by withholding or otherwise were $3,356 for 1999, $8,106

for 2000, and $3,483 for 2001, totaling $14,945. See supra p. 5.
-28-

Mr. Tucker maintains that he did so in an effort to make enough

money to pay off his delinquent taxes and other creditors, as

well as pay his tax liability for 2002 that would be coming due. 

Even if this is true, Mr. Tucker’s motives do not change the

character of his day trading activity.

Black’s Law Dictionary (8th ed. 2004) defines “day trading”

as “The act or practice of buying and selling stock shares or

other securities on the same day, esp. over the Internet, usu.

for the purpose of making a quick profit on the difference

between the buying price and the selling price.” Mr. Tucker had

never owned stocks before and had no experience in day trading. 

To further complicate matters, Mr. Tucker was trading on margin--

i.e., was borrowing part of the money to trade from a brokerage

firm--and was making high-volume trades (e.g., trading as much as

$697,721 in one day).

On April 21, 2003, Mr. Tucker stopped trading. By that time

he had lost $22,645 of his initial deposits, leaving

approximately $22,000 in the E-Trade account. Mr. Tucker

maintains that he used this remaining $22,000 to provide for

basic living expenses from May 2 through October 27, 2003. Under

Rule 121 we view the facts in the light most favorable to

Mr. Tucker, and we assume that the $22,000 was, in fact, used for
-29-

necessary living expenses.13 Pursuant to IRS administrative

guidelines, if this $22,000 was used for necessary living

expenses, it will not be considered a dissipation. IRM pt.

5.8.5.4(4) (“When the taxpayer can show that assets have been

dissipated to provide for necessary living expenses, these

amounts should not be included in the reasonable collection

potential (RCP) calculation”). We therefore consider as

potential dissipation only the other $22,645, which Mr. Tucker

lost.

The losses that Mr. Tucker sustained were not due to an

unforeseeable event but rather were commonplace (especially for a

neophyte) in such a highly volatile activity. Mr. Tucker knew he

owed outstanding taxes; and he had the cash in hand that would

have paid in full the taxes and accruals he owed as of early 2003

(i.e., for tax years 1999, 2000 and 2001); and yet he chose

instead to devote that money to a risky investment. Mr. Tucker’s

foray into day trading was purely speculative, and his already

slim chances of success were undermined by his inexperience. In

short, Mr. Tucker’s circumstances were of his own making. 

13This assumption may be unduly generous, since Mr. Tucker

admits that some portion of this $22,000 may not have been used

for necessary living expenses--e.g., $824.64 on May 19, 2003, for

an airline ticket for a personal trip to Phoenix, Arizona;

$274.84 on June 2, 2003, for the hotel stay associated with this

personal trip; $535 on October 24, 2003, for a bartending course;

and $236 on August 12, 2003, for a personal cruise on the Hudson

River.
-30-

Therefore, we cannot criticize the Office of Appeals’ conclusion

that Mr. Tucker’s losses associated with his day trading were a

dissipation of assets that should be considered for inclusion in

RCP as contemplated by IRM pt. 5.8.5.4.

In the supplemental notice of determination, the settlement

officer concluded that Mr. Tucker had dissipated $44,700 in

assets, measured by his deposits into the E-Trade account. For

purposes of summary judgment, we find that that conclusion was

excessive. The mere act of depositing the money into the E-Trade

account did not rise to the level of dissipation, but the day

trading and the losing of the money in the account did. Because

at the time in April 2003 that Mr. Tucker lost a total of $22,645

from his day trading activities, he had outstanding Federal tax

liabilities of at least $14,975,14 we hold for purposes of

summary judgment that Mr. Tucker dissipated assets of $14,975.

The settlement officer determined that not just $14,975 but

rather all $44,700 of the deposits had been dissipated. For

14The record does not provide a basis for the Court to

reasonably estimate Mr. Tucker’s unpaid tax liabilities with

accruals as of April 2003. As a result, for summary judgment

purposes, we assume Mr. Tucker’s unpaid tax liabilities to be the

amounts reported as due when he filed his delinquent returns for

tax years 1999, 2000, and 2001. Furthermore, although

Mr. Tucker’s tax liability for tax year 2002 accrued on April 15,

2003--the due date of the return--we cannot tell on the record

before us whether the losses associated with the E-Trade account

occurred before or after April 15, 2003. As a result, for

summary judgment purposes we ignore the tax liability for 2002 in

determining Mr. Tucker’s outstanding tax liabilities at the time

he dissipated assets.
-31-

purposes of summary judgment, we assume that conclusion was

erroneous as to amount, but we find that error to be harmless for

reasons explained below. See infra note 16. As a result, we

conclude that the settlement officer did not abuse her discretion

in determining that Mr. Tucker had dissipated assets as the

result of his day trading in 2003.

C. Rejection of Mr. Tucker’s OIC

The Office of Appeals rejected Mr. Tucker’s OIC because,

inter alia, it determined that he could fully pay his tax

liabilities. At the time of the supplemental notice of

determination, Mr. Tucker owed $39,790.19 (with accruals through

October 16, 2006) in unpaid Federal income taxes for the years

1999 through 2003. The settlement officer assigned to 

Mr. Tucker’s supplemental CDP hearing was tasked with considering

Mr. Tucker’s proposed OIC of $36,772 (to be paid at a rate of

$317 per month over 116 months) based on doubt as to

collectibility.

1. Mr. Tucker’s dissipation of assets justified the

rejection of his OIC.

Rev. Proc. 2003-71, sec. 4.02(2), 2003-2 C.B. 517, 517,

provides that an OIC based on doubt as to collectibility will be

treated as an acceptable collection alternative only where the

OIC reflects the taxpayer’s reasonable collection potential. A

taxpayer’s reasonable collection potential is determined, in

part, using published guidelines that establish national and
-32-

local allowances for necessary living expenses. Income and assets

(possibly including dissipated assets in accordance with IRM pt.

5.8.5.4) in excess of those needed for necessary living expenses

are treated as available to satisfy Federal income tax

liabilities. See IRM pt. 5.15.1.2(1) and (2) (May 1, 2004); IRM

exs. 5.15.1-3, 5.15.1-8, 5.15.1-9 (Jan. 1, 2005).

The parties agree that Mr. Tucker’s disposable income (i.e.,

monthly income over allowable monthly expenses) was $316 per

month, and that there were 116 months remaining before his

collection period expiration date. See sec. 6502. “Generally,

the amount to be collected from future income is calculated by

taking the projected gross monthly income less allowable expenses

and multiplying the difference times the number of months

remaining on the statutory period for collection.” IRM pt.

5.8.5.5.5(1) (Sept. 1, 2005). As a result, Mr. Tucker’s future

income subject to collection would be $316 x 116 months, or

$36,65615--an amount slightly less than the total of the payments

he proposed in his OIC.

However, as we determined above, the value of assets that

Mr. Tucker dissipated through his day trading activities was

$14,945. Under IRS guidelines, Mr. Tucker’s reasonable

15In calculating a taxpayer’s future income stream for

purposes of evaluating a offer, the IRM apparently does not

direct settlement officers to discount the monthly income stream

to a present value.
-33-

collection potential would therefore be $51,601--i.e., the sum of

his future income stream ($36,656) plus the value of any

dissipated assets (at least $14,945). Given that Mr. Tucker’s

reasonable collection potential thus exceeded his outstanding tax

liabilities, the settlement officer did not err in determining

Mr. Tucker could fully pay his Federal income tax liabilities.16

When an Appeals officer has followed IRS administrative

guidelines to ascertain a taxpayer’s reasonable collection

potential and has rejected the taxpayer’s OIC on that ground, we

generally have found no abuse of discretion. See McClanahan v.

Commissioner, T.C. Memo. 2008-161.

2. Even apart from Mr. Tucker’s dissipation of

assets, the Office of Appeals did not abuse its

discretion in rejecting his OIC.

Assuming arguendo that we should ignore dissipated assets

altogether and should conclude that Mr. Tucker’s reasonable

collection potential was less than full payment, we still hold

that the Office of Appeals did not abuse its discretion in

rejecting Mr. Tucker’s OIC and insisting instead on a PPIA, for

the following reasons.

Section 7122(a) authorizes compromise of a taxpayer’s

Federal income tax liability. “‘The decision to entertain,

16We find the settlement officer’s inclusion of $44,700 of

dissipated assets in Mr. Tucker’s reasonable collection potential

(as opposed to the $14,945 determined above) to be a harmless

error because--as is shown above--even with inclusion of only the

lower amount, Mr. Tucker could still fully pay his liabilities.
-34-

accept or reject an offer in compromise is squarely within the

discretion of the appeals officer and the IRS in general.’” 

Gregg v. Commissioner, T.C. Memo. 2009-19 (quoting Kindred v.

Commissioner, 454 F.3d 688, 696 (7th Cir. 2006)). In reviewing

this determination, we do not decide whether in our opinion

Mr. Tucker’s OIC should have been accepted. See Woodral v.

Commissioner, 112 T.C. 19, 23 (1999); Keller v. Commissioner,

T.C. Memo. 2006-166, affd. in part 568 F.3d 710 (9th Cir. 2009). 

Instead, we review the determination for abuse of discretion.

As Mr. Tucker’s representative acknowledged, an OIC

permanently limits the Government to collecting only according to

its terms, whereas a PPIA permits the Government to review the

taxpayer’s situation every two years and increase its collections

if circumstances warrant. See supra note 8. In the supplemental

notice of determination, the settlement officer articulated

several reasons for her determination, largely on the basis of

this distinction: (1) Mr. Tucker’s offer was not in the best

interest of the Government; (2) a PPIA was a better alternative

to the OIC that Mr. Tucker proposed; (3) there is reason to

believe that Mr. Tucker’s income or assets would increase in the

future, such that the IRS would collect more from a PPIA than

from the OIC; (4) “there is no law or policy that requires the

Service to accept an offer”; and (5) “the cost it takes to

monitor * * * [Mr. Tucker’s] long term deferred offer for 116
-35-

months would be similar to the cost it would take to monitor a

part payment installment agreement”. The decision whether to

accept Mr. Tucker’s OIC rested squarely within the discretion of

the settlement officer, and we find there was a reasonable basis

for the settlement officer’s decision; it was not arbitrary,

capricious, or without sound basis in fact or law. As a result,

we cannot conclude that the Office of Appeals abused its

discretion in rejecting Mr. Tucker’s OIC and sustaining the

filing of the NFTL, whether or not dissipated assets were

considered by the settlement officer or included in his RCP.

Conclusion

On the basis of the foregoing, we conclude that the Office

of Appeals did not abuse its discretion, and we hold that

respondent is entitled to the entry of a decision sustaining the

determination as a matter of law.

To reflect the foregoing,

An appropriate order and

decision will be entered.