KWOLEK v. COMMISSIONER OF INTERNAL REVENUE (2021)

United States Court of Appeals, Ninth Circuit.2021-05-13No. No. 19-73098

Summary · law.co

Holding. The court affirmed the tax court's grant of summary judgment for the Commissioner, concluding that Kwolek could not dispute her underlying tax liability at the collection due process hearing because she had received statutory notice of deficiency and previously had an opportunity to challenge it in tax court.

Kwolek challenged a tax determination covering multiple years through a collection due process hearing, arguing she should have been permitted to dispute her underlying tax liability for tax years 1999–2004. The tax court granted summary judgment for the Commissioner, and Kwolek appealed. The court affirmed, finding that Kwolek had already received statutory notice of deficiency for those years and had previously failed to timely petition the tax court for redetermination within the required 90-day window. Because she received proper notice and had an earlier opportunity to dispute the liability, she was barred from reopening that question at the collection due process hearing.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Scope of disputes permissible during collection due process hearings
Effect of prior tax court dismissal for failure to timely file petition
Whether statutory notice was properly received when mailed to last known address
Collateral estoppel regarding notice of deficiency in collection proceedings

Procedural posture

Kwolek appealed from the tax court's grant of summary judgment to the Commissioner in a collection due process hearing dispute.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Marilyn S. Kwolek (“Kwolek”) appeals from the tax courts decision granting summary judgment to the Commissioner of the Internal Revenue Service in her action challenging the notice of determination issued for tax years 1999 through 2008 following a collection due process (“CDP”) hearing. On appeal, Kwolek argues that she should have been allowed to dispute her underlying liability for tax years 1999 to 2004 at the CDP hearing. We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review de novo, Severo v. Commr, 586 F.3d 1213, 1215 (9th Cir. 2009), and we affirm.

The tax court properly granted summary judgment because Kwolek could not dispute the amount of her 1999–2004 tax liability during the CDP hearing. See 26 U.S.C. § 6330(c)(2)(B). A “person may ․ raise at the [CDP] hearing challenges to the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” See id.

Here, however, Kwolek received statutory notice of the tax deficiency. See id. In a prior action in tax court, Kwolek sought redetermination of her 1999–2004 tax deficiencies. Following an evidentiary hearing, the tax court granted Commissioners motion to dismiss for lack of jurisdiction—thereby sustaining the determination of the 1999–2004 tax deficiencies—because Kwolek failed to file her petition for redetermination within the required 90-day period. See 26 U.S.C. § 6213(a). The tax court in that prior action concluded that Kwolek was notified of the 1999–2004 tax deficiency when it was mailed to her last known address. See 26 U.S.C. § 6212(b)(1); Erhard v. Commr, 87 F.3d 273, 274–75 (9th Cir. 1996). That decision explained Kwolek could not avoid receiving notice and as a result “hold open the 90-day window to file her petition in Tax Court simply by refusing to pick up her mail.” Kwolek is thus precluded from challenging in this action whether and when she received statutory notice of the 1999–2004 tax deficiency. See § 6330(c)(4)(A); In re Baker, 74 F.3d 906, 910 (9th Cir. 1996) (per curiam). Because Kwolek cannot now reopen the issue to dispute that she received statutory notice or that she otherwise did not have the opportunity to dispute the tax liability, she cannot challenge the amount of her underlying tax liability during the CDP hearing. See § 6330(c)(2)(B); 26 C.F.R. § 301.6330-1(e)(4).

We do not consider Kwoleks request for an abatement because Kwolek failed to raise this issue before the tax court. See Monetary II Ltd. Pship v. Commr, 47 F.3d 342, 347 (9th Cir. 1995).

AFFIRMED.