Kojo Mfum v. Commissioner of Internal Revenue

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-4179
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KOJO MFUM,
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
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On Appeal from the United States Tax Court
(Tax Court No. 9065-11)
Judge: Honorable Richard T. Morrison
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Submitted Pursuant to Third Circuit LAR 34.1(a)
June 12, 2013
Before: AMBRO, HARDIMAN and ALDISERT, Circuit Judges
(Opinion filed: June 24, 2013)
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OPINION
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PER CURIAM
Kojo Mfum, proceeding pro se, appeals from the United States Tax Court’s orders
granting the Commissioner’s motion for summary judgment and denying his motion to
vacate that judgment. For the following reasons, we will affirm.

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I.
This case arises from Mfum’s failure to timely file tax returns for 2004 and 2005.
Using information gathered from third parties, the Internal Revenue Service (“IRS”)
prepared Notices of Deficiency informing Mfum of his proposed tax liabilities for those
years. Mfum did not petition the Tax Court regarding these proposed assessments, and in
2009, the IRS assessed the liabilities.
Mfum received a “Final Notice of Intent to Levy” in June 2010, and he responded
by invoking his right to a Collection Due Process (“CDP”) hearing. See 26 U.S.C. §
6330(b). After Mfum’s case was transferred to the IRS Office of Appeals in Newark,
Lisa Wold, a settlement officer, informed Mfum by letter that she had scheduled a face-
to-face CDP hearing for January 5, 2011. A day before the hearing, Mfum sent a fax
requesting that the hearing be held at an office located closer to his address, and he did
not appear for the hearing. On January 26, 2011, Wold mailed a letter in response to
Mfum’s fax, informing him that the Newark office was the only Office of Appeals
located in New Jersey and noting uncertainty as to whether the Philadelphia office was
closer to his residence. She asked him to contact her within 14 days to reschedule.
Mfum did not reply within those 14 days, but on February 22, 2011, he notified Wold
that H&R Block was preparing 2004 and 2005 tax returns for him and requested
additional time to provide those returns. Wold asked him when the returns would be
completed, and Mfum replied that he would call back later with that information. He also
indicated that he did not believe the Philadelphia office was closer to his residence.

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Mfum never followed up with Wold, and on March 16, 2011, the IRS issued a Notice of
Determination concluding that the “Notice of Intent to Levy was correct at the time of
issuance.”
Mfum sought review in the United States Tax Court, alleging that the IRS did not
honor his request for a face-to-face hearing and wanted him to pay more than he owed.
The IRS moved for summary judgment, which Mfum opposed. The Tax Court granted
the IRS’s motion, determining that Mfum was barred from contesting the amounts of the
assessed liabilities and that the IRS did not abuse its discretion in scheduling the CDP
hearing in Newark. It subsequently denied Mfum’s motion to vacate the order granting
summary judgment. This timely appeal followed.
II.
We have jurisdiction pursuant to 26 U.S.C. § 7482(a)(1) and “exercise plenary
review of the Tax Court’s order granting the IRS’[s] summary judgment motion.”
Hartmann v. Comm’r, 638 F.3d 248, 249 (3d Cir. 2011). When the underlying tax
liability is not properly in issue, we review an administrative determination about a CDP
hearing for abuse of discretion only. See Kindred v. Comm’r, 454 F.3d 688, 694 (7th
Cir. 2006).
III.
On appeal, Mfum reiterates his challenge to the amounts assessed for his tax
liabilities for 2004 and 2005. At a CDP hearing, a taxpayer may challenge the amount of
the underlying liability only if he “did not receive any statutory notice of deficiency for

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such tax liability or did not otherwise have an opportunity to dispute such tax liability.”
26 U.S.C. § 6330(c)(2)(B). The record contains copies of the Notices of Deficiency sent
to Mfum, and Mfum has not disputed his receipt of them. Furthermore, Mfum had the
opportunity to petition the Tax Court to challenge the amounts assessed. See 26 U.S.C.
§ 6330(d)(1). He did not do so. Accordingly, the Tax Court did not err by concluding
that Mfum was not entitled to challenge the underlying liability determinations.
Mfum also suggests that the Appeals Office erred by failing to grant him a face-to-
face CDP hearing at the office closest to his residence.1
Nor does the record support Mfum’s assertion that the IRS otherwise abused its
discretion in its conduct of his CDP hearing. The record does not support at all his
contention that Wold was in a hurry to close his case. First, the Appeals Office provided
Mfum additional opportunities to demonstrate his correct tax liabilities. Furthermore, the
As an initial matter, we note
that Mfum did not provide the physical location of his residence to the IRS or the Tax
Court. Moreover, contrary to his assertion, the Office of Appeals scheduled a face-to-
face hearing in Newark, but Mfum failed to attend. Wold informed Mfum that the
Newark office was the only office located in New Jersey, and Mfum himself asserted that
he did not think the Philadelphia office was closer to his residence than the Newark
office.
1 The Government asserts that Mfum has waived this argument by failing to provide any
developed argument to support his claim. However, in light of the liberal construction
we must give to pro se filings, see Haines v. Kerner, 404 U.S. 519, 520 (1972), Mfum’s
brief contains sufficient argument for us to find that he has not waived this claim.

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undisputed evidence in the Tax Court record shows that Mfum never provided Wold with
information regarding when his 2004 and 2005 tax returns would be completed so that his
CDP hearing could be rescheduled. Indeed, the Appeals Office heard nothing from
Mfum from February 22, 2011 until March 16, 2011.2
IV.
In sum, the record demonstrates
that Wold waited an additional three weeks before issuing the Notice of Determination on
March 16, 2011. Given all this, we agree with the Tax Court that the IRS committed no
error regarding Mfum’s CDP hearing.
For the foregoing reasons, we will affirm the decision of the Tax Court.3
2 Mfum does not offer any argument regarding this time period. Instead, he notes that he
attempted to call Wold on February 7, 2011, but that he received her voicemail message
stating that she was out of the office from that date until February 18, 2011. Mfum
argues that this time period coincided with the 14-day period after January 26, 2011
within which he was supposed to contact her. We agree with Mfum that the evidence
indicates that Wold was out of the office from February 7, 2011 until February 18, 2011.
However, Mfum’s assertion that this period coincided with the 14-day period is
misplaced, as the 14-day period ended on February 9, 2011. Furthermore, as discussed in
the text, Wold was not in a hurry to close his case upon her return to the office, as she
provided him with one more opportunity to submit additional information and reschedule
his CDP hearing.
3 Furthermore, we find no error in the Tax Court’s denial of Mfum’s motion to vacate the
order granting summary judgment.

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