Roger A. & Colleen C. Burton, Petitioner

ROGER A . BURTON AND COLLEEN C . BURTON, Petitioners v . COMMISSIONER OF INTERNAL REVENUE, Responden t

MEMORANDUM FINDINGS OF FAC AND OPINIO N

SWIFT, Judge : Respondent determin d a $239,309 deficiency in petitioners' 2000 joint Federal inco e tax and a $47,862 accuracy-related penalty under section 6662(a) .

At this time the only issue for d cision is whether petitioners entered into a binding set lement agreement with respondent's Appeals Office relating t petitioners' join t

SERVED MAR 18 20.09

It Federal income tax liability for 2000 .1 Petitioners assert that a final binding settlement was entered into under which they were to pay a single lump sum of $ 60,000 without any further liability to pay statutory interest .

Respondent asserts , among other things , that no final binding agreement was ever reached-- particularly with regard to petitioners ' liability for statutory interest .

Unless otherwise indicated, all section references are to the Internal Revenue Code applicable to the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure .

FINDINGS OF FAC T

Some of the facts have been stipulated and are so found .

When they filed the petition, petitioners resided in Minnesota .

Over the course of 17 years, petitioners owned the stock i n an S corporation that operated a truck stop, a convenience store, storage units, and rental units located in a building complex on Interstate 10 . In 2000 petitioners transferred their stock i n

L the S corporation to an affiliated emplo ee stock ownership plan (ESOP), and the ESOP in turn sold the as ets of the S corporation to a third party for $627,344 .

The $627,344 was to be paid in inst llments over a number of years . Robert Olson, acting under a pow r of attorney for petitioners (Attorney Olson), assisted i the transfer of the S corporation stock and in the sale of the S corporation' s assets .

On their 2000 joint Federal incom e ax return petitioner s did not report any of the $627,344 as in come .

.During an audit by respondent of p titioners' 2000 joint Federal income tax return, Attorney Ols n represente d petitioners . As a result of the audit , respondent's revenu e agent proposed to ignore petitioners' E OF, to treat the abov e asset sale as a sale by petitioners dir ctly, and to charg e petitioners under sections 1231 and 136 with the $627,344 i n proceeds from the asset sale . Responde is revenue agent als o proposed the $239,309 tax deficiency, t e $47,862 section 6662(a ) accuracy-related penalty, and statutory interest . Respondent' s revenue agent also proposed two altern tive adjustments (firs t alternative--recognize the ESOP but tr at the sale by the ESOP o f the S corporation's assets as a°sale t at did not qualify unde r section 453 for installment sale repor ing ; second alternative-- recognize the ESOP but, if the sale of the .S corporation asset s was treated as qualifying under sectio 453 for installment sale a reporting, treat the sale of the assets under section 453(e) as a second disposition by a related party and charge petitioners with income each year for the payments received by the ESOP) .

Petitioners protested the revenue agent's proposed, deficiency to respondent's Appeals Office . During the protest Attorney Olson represented petitioners . In petitioners' written protest no mention was made of statutory interest .

In a February 17, 2005, letter respondent's Appeals officer notified petitioners and Attorney Olson that he had been assigned the case . Respondent's Appeals officer further stated tha t statutory interest would accrue on the proposed tax deficiency a s required by law .

Soon thereafter, Attorney Olson and the parties initiate d settlement discussions .

In a faxed letter dated July 31, 2006, respondent's Appeals officer stated that for purposes of settlement negotiations the maximum tax that would be due from petitioners on the sale of their S corporation assets was estimated to be $107,000 .

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Respondent's Appeals officer also stated that under his estimat e the minimum tax that would be due from petitioners was $9,0,000 .

Respondent's Appeals officer further stated that the amount of .any settlement would have to at least equal the estimated minimum of $90,000 .

_5_ During a conference on August 3, 20 6, Attorney Olson argue d that each side had hazards of litigation of at least 50 percent, and he proposed that petitioners' 2000 F deral income taxes be settled for $40,000 .

In a letter dated August 7, 2006, t respondent's Appeals officer, Attorney Olson summarized his c lculation of his $40,000 .

settlement proposal as follows :

Net sale proceeds Capital gain tax rat e Hazards of litigatio n Addition for future capital gain taxes that would have been paid under curre t 'structure $ 15,00 0 Subtraction for taxes already paid o n x(20,000) $275,000 Total (cid:127)$ 40,00 0 In the above July 31, August 3, an August 7, 2006, communications apparently no reference as made to statutory interest .

In a faxed letter dated August 21, 2006, respondent's Appeals officer sent to Attorney Olson evised calculations in which he used $106,881 for the total es imated tax due and in which he restated that from respondent's viewpoint and for settlement negotiations $90,000 was being treated as the minimum i tax due under any settlement . In this letter no mention was made of statutory interest .

.At the next conference, on September 1, 2006, Attorney Olson and respondent's Appeals officer discussed a possible settlement at $60,000 . The record does not reflect what was said,'i f anything, about statutory interest .

In a faxed letter dated September l ., 2006, respondent's Appeals officer sent Attorney Olson a computerized calculation of interest on a hypothetical tax liability of $25,000 . On the copy of this letter which is in evidence there appears a handwritte n .calculation reflecting a $60,000 liability that appears . t include some statutory interest . This handwritten calculation reflecting $60,000, however, is not explained and is ambigubus .

On September 7, 2006, respondent's Appeals officer sent a cover letter to Attorney Olson with regard to a proposed settlement with an enclosed Form 870-AD, Offer to Waive Restrictions on Assessment and Collection of Tax Deficiency an d to Accept Overassessment . In the September 7, 2006, cover lette r respondent's Appeals officer referred expressly to the accrual of statutory interest as follows :

The computations do not include interest . By law, interest accrues from the due date of the return . order to stop additional interest from accruing, you may enclose full payment payable to the United States Treasury .

In refers expressly to the accrual of statutory interest as follows :

"with interest as provided by law . " In an October 20, 2006, faxed lette Attorney Olson proposed that a closing agreement be entered into regarding the settlements of . petitioners' 2000 joint Federal inco e tax liability, and o n or before October 23, 2006, Attorney 01 on mailed to respondent's Appeals officer a proposed closing agre ment . The propose d closing agreement stated in part-- The total sanction amount due to t under this Agreement is Fifty-Five ($55,000) . The taxpayers shall pa contemporaneously with the executi by five (5) payments of Eleven Tho per year plu's statutory interest p e United States Treasury Thousand Dollar s this sum n of this Agreement, or sand Dollars ($11,000) id annually * * * .

for a closing agreemen t ent coordinators, o n November 15, 2006, respondent's Appeals officer mailed t o vised closing agreement ter respondent's Appeal s officer explained that the tax due an d r the proposed revised settlement would be $60,000 and that terest would "continue to accrue" thereon until paid .

Attorney Olson notified responden agreed on behalf of petitioners to th e and on November 20, 2006, respondent' Attorriey,Olson the original revised closing agreement along with the Form 870-AD for signature .

On or about November 27, 2006, petitioners and Attorney Olson signed the closing agreement and the Form 870-AD and mailed them, along with, a check for $60,000, back to respondent's Appeals officer . On petitioners' $60,-000 check the words "paid in full" were written in the lower left corner .

On November 28, 2006, respondent's Appeals officer mailed°a letter to Attorney Olson acknowledging receipt of the closing agreement signed by petitioners, the Form 870-AD signed by petitioners,-and petitioners' $60,000 check . In his letter, however,, respondent's Appeals officer explained that he could no t process petitioners' $60,000 check because that check and petitioners' payment did not include an additional $23,684 in statutory interest respondent's Appeals officer calculated had accrued and was due on the $60,000 through November 30, 2006 .

Respondent's Appeals officer also included a computation,of th e $23,684 in accrued interest .

On December 5, 2006, respondent's Appeals officer maile d another letter to Attorney Olson reiterating that the payment due under the settlement that had been discussed was $60,000 in taxe s and $23,684 in statutory interest .

Not having received a response from petitioners, on December 11, 2006, respondent's Appeals officer by mail returne d r to Attorney Olson with a cover letter pett. itioners' $60,000 check , and on December 21, 2006, respondent iss ed the notice of deficiency .

Neither respondent's Appeals office nor any other representative of respondent or of the U ited States ever signed the closing agreement that petitioners h d signed regardin g petitioners' 2000 Federal income tax li a b ility .

OPINIO N

As explained recently in Dormer v .

Commissioner , T .C . Memo .

2004-167, the law applicable to admini s rative settlement offers involving Federal income taxes is wel l stablished . Regulations establish the procedures for closing a g eements and compromises under sections 7121 and 7122 .

Secs . 3 0 .7121-1, 301 .7122-1 , Proced . & Admin . Regs . These procedure are exclusive and must be satisfied in order to effect an adm i nistrative compromise or settlement which will be binding on bo t h a taxpayer an d respondent .

Rohn v . Commissioner , T .C .

Memo . 1994-244, see also Urbano v . Commissioner , 122 T .C . 384, 93 (2004) ("it is firml y established that section 7121 sets fo r h the exclusive means b y which an agreement between the CommissOner and a taxpaye r concerning the latter's ta x liabilit y ay be accorde d finality .") ; Estate 0 f Meyer v Commi s 3ioner , 58 T .C . 69, 7 0 (1972) ("Section 7121 of the Interna l evenue Code of 1954 set s forth the exclusive procedure under wh h a final closing 1k agreement as to the tax liability of any person can be executed") ; Harbauah v . Commissioner , T .C . Memo . 2003-316 ("It is well settled that section 7122 and the regulations thereunder provide the exclusive method of effectuating a valid compromise of assessed tax liabilities .") ; Ringgold v . Commissioner , T .C .

Memo . 2003-199 ("The law regarding compromises is,well established . The regulations and procedures under section 7122 provide the exclusive method of effectuating a compromise .") .

Regulations under sections 7121 and 7122 require that any closin g agreement or offer-in-compromise be submitted and/or executed on or in the specific form prescribed by the IRS . Secs . 301 .7121- 1(d), 301 .7122-1(d), Proced . & Admin . Regs .

Respondent has prescribed that one of two forms be used t o finalize closing agreements--Form 866, Agreement as to Final N Determination of Tax Liability, or Form 906, Closing Agreement on Final Determination Covering Specific Matters . Form 866'is use d to determine conclusively a taxpayer's total tax .liability for a taxable period . Form 906 is used if an agreement relates to on e or more separate items affecting a taxpayer's tax liability .

Sec . 601 .202(b), Statement of Procedural Rules ; see Manko v .

Commissioner , 126 T .C . 195, 201-202 (2006) .

Further, final authority over administrative settlement s involving Federal tax matters has been delegated to Regional Counsel, Regional Director of Appeals, Chiefs, Assistant Chiefs and Associate Chiefs of the Appeals Offi es, Appeals Team Chiefs, Team Managers, Directors of an Appeals 0 erating Unit, Appeals Area Directors, Deputy Appeals Area Dire tors, and Appeals Team Case Leaders . Sec . 601 .106(a)(1)(i) and (ii), Statement of Procedural Rules ; Delegation Order No . 6 (Rev . 15 Jan, 23, 1992) . The purported closing agreement in this case was never executed by an authorized . representative of respondent . Neither the Appeals officer nor the Closing Agr ement Coordinator ever signed the document .

Once a case is docketed in this Co rt a different framework of rules is typically applied . In Dorm r v . Commissioner, supra , we explained that after a case is docke ed in this Court a settlement agreement may be reached and may become final and binding on the parties through contract principles of offer and acceptance . See also Dorchester Indus . Inc . v . Co mmissioner, 108 T .C . 320, 330 .(1997), affd . without published opinion 208 F .3d 205 (3d Cir . 2000) .

As has been stated, it ""is not n cessary that the parties [in litigation] execute a closing agre ment under section 7121 in order to settle a case pending before his Court, but, rather, a settlement agreement may be reached th ough offer and acceptance made by letter, or even in the absence of a writing ."' Id .

(quoting Manko v . Commissioner , T .C . M mo . 1995-10) .

In this connection, a settlement is a contract, and genera l principles of contract law govern whether a settlement has been reached .

. Id .

A prerequisite to the formation of a contract is mutual assent to its essential terms, arrived at through offer and acceptance .

Id .

Whichever framework and set of rules we apply here, on the record . before us we conclude that . no settlement was entered into between the parties . Clearly, no final closing agreement was signed by an individual authorized to bind respondent, and no mutual agreement was reached by the parties that either excluded petitioners' liability for statutory interest on the lump sum $60,000 petitioners tendered to respondent or that affirmatively included statutory interest as part of the $60,000 that was tendered by petitioners . The bulk of the relevant documentation in evidence supports the conclusion that statutory interest was to accrue and was to be paid in addition to the $60,000 .

We agree with respondent that no mutual agreement was reached on key aspects of the proposed settlement that were being negotiated (particularly as to petitioners' liability for statutory interest) and that no final and binding settlement was entered into between the parties . We also conclude that'no person authorized to bind respondent ever executed an agreement under section 7121 . This case is return d to the general jurisdiction of the Court for trial . 2 An apbropriate order will b e issued .

FPL Group,

1. By order dated Apr . 8, 2008, the issue as to whether petitioners entered into a binding settlement agreement with respondent's Appeals Office was severed for trial and decision . Trial of other issues will await resolution of this issue .
2. In their posttrial memorandum, petitioners for the first time raise equitable estoppel . This 'ssue .is not properly before the Court . See Rule 39 . In any even , the facts do not support a finding that respondent's Appeals o ficer made any false representations to or in any way misl d petitioners or Attorney Olson about the terms of the proposed settlement . Inc ., & Subs . v . Commissioner , T .C . M mo . 2008-144 .