Tummino v. United States of America et al

Filing 52

OPINION and ORDER - The United States' motion 28 for summary judgment is GRANTED. Signed on 12/14/09 by Magistrate Judge John V. Acosta. (peg)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

CHARLES T U M M I N O , Plaintiff,

06-CV-955-AC OPINION AND ORDER

v.
UNITED STATES OF AMERICA, I N T E R N A L R E V E N U E SERVICE, Defendant. A C O S T A , Magistrate J u d g e
Introduction

Plaintiff Charles Tummino ("Tummino") brings this action seeking redetermination o f o f a federal tax lien by the Internal Revenue Service ("IRS"). The IRS filed a motion for summaIy judgment on all claims. The court grants the I R S ' s motion because the IRS has

P a g e I - OPINION A N D O R D E R

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demonstrated that no genuine issue o f material fact exists regarding Tummino's tax liability arising from his promotion o f an abusive tax shelter and as to the collectibility o f that liability.'

Background
Tummino operated an insurance and securities business under the name o f Charles Tummino & Associates. ( P l a i n t i f f s Deposition ("PI. Depo.") 7.) Tummino is a licensed

insurance agent in Oregon. ld. at 3. He was licensed to sell securities i n Oregon until he reached an agreement with the State o f Oregon that in exchange for voluntarily "rescind[ing]" his license, the State would waive a fine that Tummino faced for selling interests in a limited partnership before the State had approved them for sale. k l at 9-10. Alpha Telecom, Inc. ("Alpha") is an Oregon telecommunications company engaged i n the business o f installing and maintaining commercial phone systems. (Form 886A I); see also

S.E.c. v. Alpha Telecom, Inc., 187 F. Supp. 2d 1250, 1252 (D. Or. 2002) (discussing Tummino's
relationship with Alpha). Alpha also owned and managed approximately 1,800 pay phones. !d. Tummino met A l p h a ' s President, Paul Rubera, when Rubera was installing a phone in Tummino's business. (PI. Dep. 13.) Sometime i n 1997, Tummino approached Rubera with a business idea, suggesting that Alpha sell pay phones to individuals, who would then contract with a phone company such as Alpha to manage those phones. ld. at 14-15. Participants i n the program would enter into two agreements: ( I ) a purchase agreement for a pay phone; and (2) a service agreement with Alpha to manage the phone. Alpha, 187 F. Supp. 2d at 1255. Although investors were given the choice o f using a company other than Alpha to manage the pay phone, approximately ninety percent o f investors selected Alpha to service their pay phones. Id. Most

1 The parties have consented to jurisdiction by magistrate j u d g e pursuant to 28 U.S.C. § 631(c)(I).

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o f these investors had no involvement in the operation o f the pay phone. [d. Alpha selected the l o c a t i o n o f t h e p a y p h o n e , i n s t a l l e d t h e p h o n e , o b t a i n e d all c e r t i f i c a t i o n s f r o m r e g u l a t o r y b o d i e s , maintained and cleaned the pay phones, paid all utility bills, and collected the revenue. [d. Tummino contracted with Alpha to develop a sales force (PI. Dep. 20) and to market the program. (Form 886A 2); Alpha, 187 F. Supp. 2d at 1255. In addition t o developing the

program, Tummino personally sold pay phones t o customers. (PI. Dep. 44.) Under the terms o f the contract between Tummino and Alpha, Tummino was to be paid a commission o f 20% for a n y s a l e s t h a t h e made. (PI. Dep. 19.) During the years 1997 to 2001, Alpha developed, (Form 886A 1.) B y the t i m e

p r o m o t e d , a n d sold i n v e s t m e n t s i n the p a y p h o n e program.

Tummino stopped actively developing the sales force, approximately 500 sales agents were under contract, although many o f them were n o t " o u t really selling." (PI. Dep. 38.) Tummino created materials used by the sales agents and made telephone calls to the agents explaining the program. [d. at 39-41. Tummino also fielded calls from accountants o f investors. (Form 886A 8); see also D e f e n d a n t ' s Exhibit ("Def. Ex.") 6. Program materials used t o recruit the sales force and customer advertising materials stressed that patticipation in the program could reduce or eliminate a c u s t o m e r ' s federal income tax liability. [d. Specifically, t h e s e m a t e r i a l s l e d i n v e s t o r s to b e l i e v e t h a t t h e p u r c h a s e o f a p a y p h o n e c o n s t i t u t e d t h e p u r c h a s e o f a small business, entitling the investor to deductions such as depreciation o f business assets under the Internal Revenue Code ("LR.C.") § 179.
[d.

Additionally, these materials led

investors to believe that the payphones qualified for a disabled access tax credit for the cost o f the phone under LR.C. § 44. [ d The promotional materials were in print (see Def. Ex. 6) and on video. (Form 886A 7). In the video, Tummino makes similar promises o f deductions under § 179 and credits under § 44. P a g e 3 - O P I N I O N AND O R D E R {PLB}

In October 1998, American Telecommunications Company, Inc. ("ATC") was created. (PI. Dep. 22); Alpha, 187 F. Supp. 2d at 1255. Tummino operated ATC as the marketing and sales arm o f the pay phone program, while A l p h a ' s focus was on obtaining phone sites, installation, service, and management o f the phones. Id. In 1999, the telIDS o f the contract between Alpha and Tummino were modified to provide Tummino with a commission o f I % o f gross sales in the pay phone program. I d at 22. Although Tummino ostensibly was available to assist in presentations under the terms o f the modified contract, he acknowledged that he received the 1% commission for "coming up with the idea and getting it started." I d at 23, 34. Overall, Alpha sold approximately 31,000 pay phones resulting i n a gross income o f $1,437,450 for Tnmmino. (Def. Ex. 3.) I n July 2001, the United States Securities and Exchange Commission obtained an injunction against fUlther sales o f pay phones by Alpha. Alpha, 187 F. Supp. 2d at 1263. On August 23, 2004, the IRS assessed a tax-promoter penalty o f $ I , 4 3 7 , 4 5 0 against Tummino under I.R.C. § 6700. (Attach. to Notice o f Determination 2; Form 886A 1.) The IRS subsequently filed a Notice o f Federal Tax Lien pursuant to I.R.C. §§ 6320 and 6330, encumbering Tummino's real property. (Complaint ~~ 2-3.) In 2004, Tummino withdrew funds from his IRA retirement accounts. I d at ~ 27. Tummino timely requested a Collection Due Process ("CDP") hearing under § 6330 to contest his liability and to propose alternatives to collection. I d at ~ 4. A CDP hearing was held on March 9, 2006. I d at
~

5.

As part o f the CDP hearing, Tummino made an offer in

compromise to the IRS, offering to pay $21,000 i n full satisfaction o f the penalties assessed against him. (Attach. to Notice o f Determination 2.) Tummino based his offer in compromise on doubt as to liability and doubt as to collectibility. I d The IRS rejected T u m m i n o ' s offer in P a g e 4 - OPINION A N D O R D E R {PLB}

compromise.

Id.

W i t h regard to T u m m i n o ' s doubt as to liability, t h e IRS concluded t h a t

T u m m i n o was n o t entitled to contest liability i n the CDP hearing and that the p r o p e r course was for T u m m i n o t o p a y f i f t e e n p e r c e n t o f t h e p e n a l t y a n d t o f i l e a t a x - r e f u n d s u i t i n f e d e r a l d i s t r i c t cOUli. Id. As to T u m m i n o ' s doubts as to collectibility, the IRS required Tummino to provide d o c u m e n t a t i o n t o e s t a b l i s h w h e n T u m m i n o l i q u i d a t e d a n I R A a n d h o w the p r o c e e d s w e r e s p e n t .

Id. Because T u m m i n o failed to provide sufficient documentation to detelmine the amount o f
d i s s i p a t e d a s s e t s , t h e I R S ' w a s unable t o d e t e r m i n e t h e r e a s o n a b l e c o l l e c t i o n p o t e n t i a l a n d m i n i m u m acceptable offer, resulting i n the inability o f t h e IRS to accept T u m m i n o ' s offer in compromise. Id. Tummino filed a complaint in the United States District COUli for the District o f Oregon f o r r e d e t e r m i n a t i o n o f t h e c o l l e c t i o n a c t i o n s . T h i s c o u r t s t a y e d the p r o c e e d i n g s a n d r e m a n d e d the case to the IRS for consideration o f the underlying liability. On remand, t h e IRS sustained the lien filing against Tummino. (Supplemental N o t i c e o f Determination 1.) After t h e stay i n this case w a s lifted, the IRS filed a motion for s u m m a t y judgement. In his response to t h e motion, Tummino claimed that the IRS h a d refused to provide all documents t h a t it had u s e d as a b a s i s f o r the p e n a l t y t h a t i t a s s e s s e d a g a i n s t h i m . B y o r d e r , t h e p a t i i e s s u b m i t t e d s u p p l e m e n t a l briefing to the court regarding whether the documents requested by Tummino were subject to review. The IRS included with its memorandum copies o f additional documents for r e v i e w by Tummino. This court then granted Tummino leave to file a revised response to D e f e n d a n t ' s M o t i o n for S u m m a t y Judgement. Tummino v. United States, No. 06-cv-955-AC, slip op. at 9 (D. Or. January 8, 2009). This cOUli n o w considers the D e f e n d a n t ' s motion for s u m m a t y judgement.

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Legal Standards
Summary j u d g m e n t i s appropriate where there is no genuine issue o f material fact and the moving party is entitled t o j u d g m e n t as a matter o f law. FED. R. CIY. P. 56(c). A genuine issue o f material fact exists where a reasonable jUly could return a verdict for the nonmoving patty.

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

A p a t t y seeking s u m m a t y

j u d g m e n t bears the initial burden o f demonstrating the absence o f a genuine issue o f material fact.

Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986).

O n c e the m o v i n g p a r t y h a s

d e m o n s t r a t e d t h e a b s e n c e o f a g e n u i n e i s s u e o f m a t e r i a l fact, t h e n o n m o v i n g p a r t y b e a r s t h e burden o f designating specific facts showing that there is a genuine issue for trial. Id. at 24. A g e n u i n e i s s u e o f m a t e r i a l fact d o e s n o t r e s u l t f r o m a s c i n t i l l a o f e v i d e n c e o r e v i d e n c e t h a t is merely colorable or n o t significantly probative. United Steelworkers o f Amer. v. Phelps Dodge

Corp., 865 F . 2 d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809 (1989). Allegations i n the
c o m p l a i n t , u n s u p p o r t e d c o n j e c t u r e , o r c o n c l u s o r y s t a t e m e n t s are n o t e v i d e n c e a n d a r e n o t sufficient to carry the non-moving p a t t y ' s burden. Hernandez v. Spacelabs Medical, Inc., 242 F.3d 1107, 1112 (9th Cit'. 2003). The substantive l a w governing a claim determines whether a fact is material. T. W Elec.

Serv., Inc. v. Pacific Elec. Contractors Ass 'n, 809 F.2d 626, 630 (9th Cir. 1987). On a motion
for summaty judgment, evidence is viewed in the light most favorable to the non-moving party.

Universal Health Services, Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). Discussion
A.
Opportunity to respond Tummino first argues that the IRS summarily asserted the penalty under § 6700 without giving him a reasonable and fair oppOltunity to respond. T h i s argument lacks legal support on P a g e 6 - OPINION A N D O R D E R . {PLB}

the facts o f this case. "The right o f the United States to collect its internal revenue by summary administrative proceedings has long been settled. Where, as here, adequate opportunity is

afforded for a later judicial determination o f the legal rights, summary proceedings to secure prompt performance o f pecuniaJy obligations to the govemment have been consistently sustained."

Tavaras v. U s . , 491 F.2d 725, 726 (9th Cir. 1974) (quoting Phillips v.

Commissioner o f Internal Revenue, 283 U.S. 589 (1931

».

There is no dispute that Tummino

received a CDP hearing or, having obtained an unfavorable CDP determination, that he then filed this lawsuit to obtain a judicial determination o f his rights. Accordingly, Tummino has received the process established to allow for review and consideration o f the I R S ' s assessment o f the penalty against him. B. Liability

1.

Abusive tax shelter

Where the validity o f the underlying tax liability is properly at issue, the Court will review the matter on a de novo basis. Goza v. C I R . , 114 T.C. 176, 181 (2000) (citing H.R. Conf. Rep. 105-599, at 266 (1998»; see also Medlock v. United States, 325 F. Supp. 2d 1064,

1076 ( C D . Cal. 2003). Therefore, this court reviews the question o f Tummino's underlying tax
liability de novo. To establish that Tummino participated in the promotion o f an abusive tax shelter, the IRS must prove that he ( I ) participated in the sale o f an investment plan and (2) made or furnished a statement with respect to tax benefits which he knew or had reason to know was false or fraudulent as to a material matter. 68 U.S.C. § 6700(a); see also US. v. Campbell, 897 F.2d 1317, 1320 (5th Cir. 1990); U s . v. Kuan, 827 F.2d 1144, 1147 (7th Cir. 1987). Tummino argues that the IRS had not factually established that anything he did promoted an abusive tax shelter. Tummino claims generally that "there are many disputed facts." (PI. Page 7 - OPINION AND ORDER {PLB}

Mem. '\[ 35.) However, T u m m i n o ' s arguments dispute the application o f the l a w to the facts rather than the facts themselves. As discussed below, the IRS properly relied on the elements laid out in § 6700(a), and elaborated o n by Campbell and Kuan, i n establishing the abusive nature o f T u m m i n o ' s behavior under the statute. Here, the first element o f § 6700 is satisfied by T u m m i n o ' s admission that he contracted w i t h Alpha to develop a sales force and to market the p a y p h o n e program. To satisfy the second element, the IRS must prove that Tummino (1) made or furnished a statement with respect to tax benefits (2) which he k n e w o r had reason to know (3) was false or fraudulent (4) as to a material matter. Campbell, 897 F.2d at 1317. First, Tummino made statements with respect to tax benefits in the marketing and training materials that he distributed t o s a l e s a g e n t s a n d c u s t o m e r s , i n c l u d i n g a p a m p h l e t a n d a video. T u m m i n o a l l e g e s t h a t a f t e r h e left Alpha in 1998, Alpha hired a marketing company, SPA, to become A l p h a ' s sole marketing agent. He fmther alleges that S P A discarded T u m m i n o ' s marketing materials for the pay phone program i n favor o f materials developed by SPA. (PI. Mem. '\[13-14.) Tummino, however, has f a i l e d to p r e s e n t e v e n a s c i n t i l l a o f e v i d e n c e to s u p p o r t t h e s e a l l e g a t i o n s . To oppose summalY judgment, Tummino relies exclusively his o w n conclusory a l l e g a t i o n s a n d t h o s e o f h i s f o r m e r a t t o r n e y . " W h e n t h e n o n m o v i n g p a r t y r e l i e s o n l y o n its o w n a f f i d a v i t s to o p p o s e s u m m a r y j u d g m e n t , i t c a n n o t r e l y o n c o n c l u s o r y a l l e g a t i o n s u n s u p p o r t e d b y factual data to create a n issue o f material fact." Hansen v. U S . , . 7 F.3d 137, 138 (9th Cir. 1993). A s d i s c u s s e d i n t h i s c o u r t ' s p r i o r r u l i n g i n t h i s case, b e c a u s e T u m m i n o ' s a t t o r n e y h a s s i m p l y asserted having personal knowledge o f "many" o f the facts refell'ed to i n T u m m i n o ' s opposition to s u m m a r y j u d g m e n t (Douglas O e d . '\[ 1), this court cannot ascertain which pOltions o f the declaration are based o n personal knowledge. T u m m i n o ' s supplemental briefing o n the motion P a g e 8 - OPINION AND O R D E R {PLB}

for summaty judgment offers no additional evidence to support his claim that his work was supplanted by that o f SPA. Accordingly, this court concludes that the declaration o f Tummino's attomey along with Tummino's own unsuppolied claims are insufficient under Rule 56(e) to oppose s u m m a t y j u d g m e n t . Second, Tmnmino knew or had reason to know that the statements made were false or fraudulent. Tummino was a sophisticated business person with extensive experience in the sale o f securities and insurance. He was aware o f the importance o f consulting with experts in particular fields when entering into new businesses. This is evidenced by his consultation with an attorney about whether patiicipation in the pay phone program constituted the sale o f securities. Tummino claims that he sought the advice o f a tax consultant and relied on the advice o f Alpha's accountant with regard to the propriety o f the pay phone program, but the record contains no evidence that he conferred with a tax consultant prior to entering into the pay phone program. Instead, Tummino relies only on the conciusOlY and general statements in his

attorney's declaration, which this court already has found to be insufficient to raise a genuine issue o f material fact. Tummino' s alternative argument in his supplemental briefing, that he did not know or have reason to know that his statements were false because they were based on other literature promoting pay phone services, similarly fails, as he presents insufficient evidence that such literature existed or that he consulted such literature prior making statements concerning the tax benefits o f the payphone program? As a result, Tummino has failed to raise a

2 E v e n i f this c o m i accepted Tummino' s allegation o f reliance o n other literature as a basis for his knowledge, or lack thereof, o f the tax benefits o f pay phone programs, a review o f Tummino's claims as to the contents o f the "thesis" on which h e relies reveal no literature discussing the tax benefits o f pay phone programs.

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genuine issue o f material fact as to whether he knew or should have known that he was supplying false statements about the tax benefits o f the pay phone programs. Third, Tummino has failed to raise a genuine issue o f material fact as to whether the statements he made in promotion o f the pay phone program were false or fraudulent. I n fact, Tummino does not even contest the IRS determination that the deductions and credits that he promised as a p a t t o f the pay phone program were not allowable. Fourth and finally, T u m m i n o ' s statements made in promotion o f the pay phone program were material. A matter is considered material under § 6700 " i f it would have a substantial impact o n the decision making process o f a reasonably prudent investor." U s . v. BUffO/jf, 761 F.2d 1056, 1062 (5th Cir. 1985) (quoting S. REP. N o . 97-494, at 267 ( 1 9 8 2 » . In Butto/:fJ, the Fifth Circuit held that this test was met where the taxpayer assured customers that the purported t a x b e n e f i t s o f t h e t a x s h e l t e r w e r e lawful, d e s p i t e c o n s i s t e n t r e j e c t i o n o f s i m i l a r s h e l t e r s b y t h e COUtts. ld. The taxpayer in ButtO/:ff counseled his clients not to seek separate opinions from lawyers or accountants. ld. Many o f the victims o f the tax shelter in ButtO/ff testified that had t h e y k n o w n o f t h e I R S ' s t r e a t m e n t o f these s h e l t e r s , t h e y p r o b a b l y w o u l d n o t h a v e i n v e s t e d i n them. ld. In this case, it strains reason to think that the tax shelter component o f the pay phone program was not a material consideration to those who enrolled i n it. T h e only evidence i n the record o n this point is T u m m i n o ' s acknowledgment that the tax credit is what attracted the customers o f the payphone program. Further, the target market for the program is similar to that in Buttorff. apparently unsophisticated investors who were not in the business the previous year and to whom the taxpayer gave celtain assurances regarding return o n investment and taxability. No evidence allows a reasonable inference other than that the tax credit is what interested Page 10 - OPINION AND ORDER {PLB}

customers i n the pay phone program and that, as with victims i n ButtorjJ, they would have been less likely to invest i n the pay phones had they known o f the I R S ' s treatment o f the deductions and tax credits promised by Tummino. Thus, the promise o f deductions and tax credits as a result o f investment in the pay phone program is material. Accordingly, Tummino has failed to raise a genuine issue o f material fact as to any o f the elements o f the I R S ' s conclusion that Tummino committed a violation o f § 6700.

2.

Penalty

Tummino also argues that the IRS miscalculated the penalty under § 6700 because it "assumes, without supporting factual basis, that [Tummino] actively promoted all 31,000 sales." (PI. Mem.
~

43.) Any person who "makes or furnishes or causes another person to make or

furnish" a statement which the person knows or has reason to know is false or fraudulent as to
any material matter is subject to the penalty under the statute. § 6700(a)(1)(B) (emphasis added). Tummino does not contest the total number o f phone sales made under the program. N o r does he contest the fact that he continued to have a financial interest in the pay phone program after he ceased to actively participate in the program. Furthermore, as discussed earlier, Tummino does not provide sufficient evidence to raise a genuine issue o f material fact as to whether Alpha and SPA discarded the marketing and training materials developed by Tunmlino to market the pay phone program. Taxpayers who violate § 6700 are subject to " a penalty equal to the $1,000 or, i f the person establishes that it is lesser, 100 percent o f the gross income derived (or to be derived) by such person from such activity" with respect to "each activity." § 6700(a)(2). Thus, Tummino is subject to the lesser of$31,000,000 (31,000 sales multiplied by $1,000 per sale) o r $1,437,450 (the total income derived by Tummino from the pay phone program). Because Tummino fails to Page 11 - OPINION AND ORDER {PLB}

raise a genuine issue o f material fact as to whether the IRS properly counted t h e n u m b e r o f sales as applied to the calculation o f the penalty and does not contest the total income derived from the p a y p h o n e p r o g r a m , the c o u r t w i l l n o t d i s t u r b t h e I R S ' s d e t e r m i n a t i o n t h a t T u m m i n o ' s l i a b i l i t y i s $1,437,450. C. Collectibility W h e r e t h e v a l i d i t y o f t h e u n d e r l y i n g t a x l i a b i l i t y i s n o t a t issue, t h e c o u r t w i l l r e v i e w t h e administrative determination for abuse o f discretion. Goza, 114 T.C. at 181 (citing H.R. Conf. Rep. 105-599, a t 266 ( 1 9 9 8 » ; see also Medlock, 325 F. Supp. 2 d a t 1076. Having determined t h e u n d e r l y i n g t a x l i a b i l i t y t o b e e s t a b l i s h e d , the c o u r t r e v i e w s t h e q u e s t i o n o f T u m m i n o ' s doubts as to collectibility under an abuse o f discretion standard. A n abuse o f discretion is a ' ' ' p l a i n e r r o r , ' namely, 'discretion exercised to a n e n d n o t justified by the evidence, a j u d g m e n t that is clearly against the logic and effect o f the facts as are f o u n d . ' ' ' Medlock, 325 F. Supp. 2 d at 1076 (citing Wing v. Asarco, Inc., 114 F.3d 986 (9th Cir. 1997». A n abuse o f discretion o c c u r s w h e n a d e c i s i o n is b a s e d " o n a n e r r o n e o u s v i e w o f t h e l a w o r a c l e a r l y e r r o n e o u s assessment o f the facts." Fargo v. Commissioner, 447 F.3d 706, 709 (9th Cir. 2006) (citations omitted). Tummino fails to raise a genuine issue o f material fact as to whether t h e IRS abused its discretion by concluding that he had dissipated assets and including those assets i n the m i n i m u m a c c e p t a b l e offer. T h e I n t e r n a l R e v e n u e M a n u a l ( " I R M " ) p r o v i d e s t h a t w h e n t h e t a x p a y e r c a n s h o w t h a t a s s e t s h a v e b e e n d i s s i p a t e d t o p r o v i d e for n e c e s s m y l i v i n g e x p e n s e s , t h e s e a m o u n t s s h o u l d n o t b e i n c l u d e d i n the r e a s o n a b l e c o l l e c t i o n p o t e n t i a l ( " R C P " ) . I . R . M . 5 . 8 . 5 . 4 ( 4 ) . 3 I f t h e

3T h e S e c r e t a r y o f T r e a s u r y o r h i s d e s i g n e e s m a y p r e s c r i b e r e g u l a t i o n s t o c a r r y o u t t h e d u t i e s and p o w e r o f t h e Secretmy, including collection o f receipts. 31 U.S.C. § 321 (2009). T h e I R M Page 12 - OPINION A N D ORDER {PLB}

assets have been dissipated with a disregard o f the outstanding tax liability, the IRS should consider including the value in the RCP. LR.M. 5.8.5.4(5). I f the taxpayer does not provide information showing the disposition o f funds from dissipated assets, the IRS should consider i n c l u d i n g a p o r t i o n o r a l l o f t h e s e v a l u e s i n a n acceptable o f f e r amount. L R . M . 5 . 8 . 5 . 4 ( 6 ) . T h e IRM fUliher provides that an offer may be returned at any time during processing i f the taxpayer fails to provide information necessmy to determine whether it should be accepted. 5.8.7.2.2.2(1). Consistent with these provisions, the IRS reasonably requested documents from Tummino pertaining to the disposition o f the funds drawn from Tummino' s IRA. Tummino alleges that, contrmy to the assertion o f the IRS, he provided evidence that the withdrawals from his IRA were not dissipated assets. (PI. Mem. '119.) Tummino, however, has not produced copies o f any o f the infOlmation that he alleges he submitted to the IRS for review. Even after Tummino obtained additional discovery, he failed to provide evidence that the withdrawals fi'om his IRA were not dissipated assets. As a result, Tummino fails to raise a genuine issue o f material fact as to whether the IRS abused its discretion by concluding that Tummino had dissipated assets and including those assets i n the m i n i m u m acceptable offer. T h e r e f o r e , t h e c o u r t w i l l n o t d i s t u r b t h e I R S ' s d e t e r m i n a t i o n o f collectibility.

II II II II II

establishes the organization and procedures o f t h e IRS under the authority granted by § 321. Page 13 - OPINION AND ORDER {PLB}

Conclusion T h e U n i t e d S t a t e s ' m o t i o n f o r s u m m a r y j u d g m e n t ( # 2 8 ) is G R A N T E D . DATED this 14th day o f December, 2009.

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