David L. Samuel - Page 17




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          It is not totally clear how dissipated assets can be “no longer             
          available to pay the tax liability” (see (1), above) while at the           
          same time included in the “reasonable collection potential (RCP)            
          calculation” (see (5), above).                                              
               The settlement officer apparently considered herself                   
          required to apply this rather cryptic guideline, and under an               
          abuse of discretion standard we are not at liberty to challenge             
          her judgment that it should be used.  However, under the abuse of           
          discretion standard, we must assure that the guideline is                   
          correctly applied.                                                          
               The Appeals Case Determination states that                             
               Appeals preliminary determination of Dr. Samuel’s net                  
               realizable equity (NRE) in his assets is that it should                
               include 100% of his dissipated assets totaling $133,158 with           
               the possible exception of the $15,600 paid for his 2003                
               estimated tax payment, his legal fees of $5,000 incurred in            
               association with his civil law suit against his prior                  
               employer and $5,464 paid for child support.  He has no net             
               realizable equity in his personal residence given that quick           
               sale value (QSV) is used and offset against his mortgage of            
               $322,000.  Since his mortgage exceeds the QSV of $320,000              
               (80% of FMV determined to be at $400,000), he has no equity            
               to include in his NRE.  Appeals believes that his interest             
               in his medical corporation exceeds that which was reported             
               at the face-to-face hearing to be the value of the equipment           
               totaling $3,630.  This is an on-going business that had                
               gross income in excess of $300,000 in 2003.                            
               The Appeals Case Determination goes on to state that                   
               Dr. Samuel was provided the opportunity to increase his                
               offered amount to at least include amounts he realized                 
               pursuant to his dissipated assets in order that his offer              
               receive further consideration.  He declined to so do.                  









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