John A. Hartmann v. COMMISSIONER OF INTERNAL REVENUE On Appeal from the United States Tax Court Tax Ct.…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1832
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JOHN A. HARTMANN,
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
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On Appeal from the United States Tax Court
Tax Ct. No. 08-04427
(Tax Court Judge: Honorable Joseph H. Gale)
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Submitted Pursuant to Third Circuit LAR 34.1(a)
November 2, 2009
Before: SCIRICA, Chief Judge, JORDAN and STAPLETON, Circuit Judges
(Filed: November 5, 2009 )
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OPINION OF THE COURT
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PER CURIAM.
Appellant John A. Hartmann appeals from the United States Tax Court’s order and
decision granting the Commissioner of Internal Revenue’s (“IRS”) motion for summary
judgment in this action to collect unpaid taxes. Because Hartmann’s arguments on appeal
do not demonstrate the existence of a genuine issue of material fact, or that the IRS is not

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CDP hearings are informal proceedings that provide a delinquent taxpayer with an1
opportunity to be heard before the IRS can levy upon his or her property in order to
satisfy outstanding tax liabilities. See generally 26 U.S.C. § 6330. During the hearing, the
taxpayer is permitted, inter alia, to propose collection alternatives such as a settlement or
payment schedule, and the Settlement Officer ultimately must determine whether the
proposed levy “balances the need for the efficient collection of taxes with the legitimate
concern of the person that any collection action be no more intrusive than necessary.” Id.
at § 6330(c)(3). The Settlement Officer’s decision generally is reviewable by the Tax
Court for abuse of discretion. See Kindred v. Comm’r, 454 F.3d 688, 694 (7th Cir.
2006).
The Tax Court also denied Hartmann’s motion to vacate and revise its order granting2
summary judgment. Hartmann does not appeal from that decision.
2
entitled to judgment as a matter of law, we will affirm the order of the Tax Court.
I.
After a collection due process (“CDP”) hearing at its Office of Appeals, the IRS
issued a Notice of Determination approving a proposed levy upon Hartmann’s property to
collect unpaid taxes for the 2001 tax year. Hartmann timely challenged that1
determination before the Tax Court. The IRS moved for summary judgment. In
December 2008, the Tax Court entered an order and decision granting the IRS’s motion
for summary judgment and sustaining the determination made by the IRS. Hartmann
timely appealed from that order.2
II.
The Tax Court had jurisdiction under 26 U.S.C. § 6330(d)(1), and we have
jurisdiction under 26 U.S.C. § 7482(a)(1). We exercise plenary review of the Tax Court’s

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3
order granting the IRS’s summary judgment motion. See Conn. Gen. Life Ins. Co. v.
Comm’r, 177 F.3d 136, 143 (3d Cir. 1999). Like Rule 56(c) of the Federal Rules of Civil
Procedure, Rule 121(b) of the Tax Court Rules of Practice and Procedure provides that
summary judgment may be granted “if the pleadings, answers to interrogatories,
depositions, admissions, and any other acceptable materials, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that a decision may
be rendered as a matter of law.” Craig v. Comm’r, 119 T.C. 252, 259-60 (2002).
III.
Hartmann makes two arguments to demonstrate that the Tax Court erred in
granting the IRS’s summary judgment motion, both of which were rejected by the Tax
Court. First, Hartmann argues that the Settlement Officer abused his discretion when he
rejected Hartmann’s offer-in-compromise as an alternative settlement agreement.
Second, Hartmann argues that the Office of Appeals abused its discretion “because the
same agent conducted both a CDP hearing and reviewed an offer in compromise.” As the
Tax Court correctly found, neither argument has merit, and thus neither precludes the
entry of summary judgment in favor of the IRS.
Specifically, we agree with the Tax Court that the Settlement Officer did not abuse
his discretion in rejecting Hartmann’s offer-in-compromise because Hartmann had not
timely filed his 2006 income tax return at the time of the offer, as was required for his
offer-in-compromise to be considered. Cf. Christopher Cross, Inc. v. United States, 461

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“A Schedule K-1 is used as part of the tax return to report the partner’s share of3
income, credits, deductions and other items resulting from the partnership.” Hansen v.
Comm’r, 471 F.3d 1021, 1026 n.6 (9th Cir. 2006).
4
F.3d 610, 613 (5th Cir. 2006) (“[t]he failure to timely pay owed taxes is a perfectly
reasonable basis for rejecting an offer in compromise relating to other unpaid taxes”).
While Hartmann argues that his providing the Settlement Officer with a K-1 for the 20063
return constituted “substantial compliance,” we find no basis to substitute Hartmann’s
self-serving standard for the documentation requested by the Settlement Officer (proof of
estimated payments for the 2006 tax year, supporting documentation for the Form 433-A
Collection Information Statement, etc.).
We also agree with the Tax Court’s determination that it was not improper for the
same IRS agent to both conduct the CDP hearing and review the offer-in-compromise.
Hartmann has not supplied any authority for his argument to the contrary. More
importantly, though, section 6330(b)(3) provides that a CDP hearing “shall be conducted
by an officer or employee who has had no prior involvement with respect to the unpaid
tax specified” in the notice of intent to levy, and there is no indication in the record that
the Settlement Officer had any such “prior involvement.”
Accordingly, we will affirm the Tax Court’s entry of summary judgment in favor
of the IRS.

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