United States v. 2020-10-22 | 19-73233 | MICHAEL BROWN V. CIR | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL D. BROWN,

Petitioner-Appellant,

v.

COMMISSIONER OF INTERNAL
REVENUE,

Respondent-Appellee.

No. 19-73233

Tax Ct. No. 18104-17L

MEMORANDUM
*

Appeal from a Decision of the
United States Tax Court

Argued and Submitted October 6, 2020
Pasadena, California

Before: HURWITZ, BRESS, and BUMATAY, Circuit Judges.

Michael Brown appeals a United States Tax Court decision affirming
Collection Due Process determinations that sustained the filing of two notices of
federal tax liens and the return of his offer-in-compromise. We have jurisdiction
under 26 U.S.C. § 7482(a)(1), and we affirm in part, vacate in part, and remand.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED

OCT 22 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
1. The IRS did not abuse its discretion in returning Brown’s offer-in-
compromise and sustaining the notices of federal tax liens. The Internal Revenue
Code requires the IRS to “consider[]” Brown’s proposed offer-in-compromise. 26
U.S.C. § 6330(c)(3). The IRS appeals officer did so. She forwarded Brown’s offer
to two other IRS departments for review and then investigated the case herself,
reasonably concluding that other pending matters that could affect Brown’s tax
liability precluded further consideration of the offer. Contrary to Brown’s claim, the
Internal Revenue Manual did not “overrule” the Internal Revenue Code with respect
to his offer-in-compromise. The Manual instructs appeals officers to verify that
there are no other pending matters related to the taxpayer and, if there are, to advise
the taxpayer that the offer cannot proceed. IRM 5.8.4.17(1), (2) (May 10, 2013).
Such an instruction is not inconsistent with the Code’s requirement to “consider[]”
an offer-in-compromise. 26 U.S.C. § 6330(c)(3).
2. Brown’s offer was not accepted by operation of law under 26 U.S.C.
§ 7122(f). “An offer returned . . . is deemed pending only for the period between
the date the offer is accepted for processing and the date the IRS returns the offer to
the taxpayer.” 26 C.F.R. § 301.7122-1(d)(2) (2002). And an offer “will not be
deemed to be accepted if the offer is, within the 24-month period, rejected by the
[IRS], [or] returned by the [IRS] to the taxpayer as nonprocessable or no longer
processable.” IRS Notice 2006-68, § 1.07, 2006-2 C.B. 105, 106. The IRS returned

3
Brown’s offer well before 24 months had elapsed since the submission of the offer-
in-compromise.
3. Brown also challenges the IRS’s refusal to return his Tax Increase
Prevention and Reconciliation Act (“TIPRA”) payment. In turn, the Commissioner
questions our jurisdiction, and the Tax Court’s jurisdiction, to consider this claim.
As a federal appellate court, we must be sure of our own jurisdiction and that of the
lower court. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986).
Since jurisdiction was not meaningfully addressed before the Tax Court, and because
the issue is a technical one under the tax laws, we remand for the Tax Court to
consider whether it has jurisdiction over Brown’s TIPRA payment claim.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.