Lawrence Jay Russ - Page 16




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               In contrast to necessary expenses, “conditional expenses”              
          are those expenditures that do not meet the necessary expense               
          test.  IRM pt. 5.15.1.7(6) (2004).  In general, the IRS expects a           
          taxpayer to pay toward his liability the difference between his             
          gross income and his necessary, allowable expenses.  The                    
          Secretary instructs that installment agreements will be based on            
          a taxpayer’s maximum ability to pay; “i.e., how quickly a                   
          taxpayer can fully pay the tax liability.”  IRM pt. 5.15.1.2(6)             
          (2004).                                                                     
               However, the “Five Year Rule” of IRM pt. 5.15.1.2(5) (2004),           
          provides that excessive necessary and conditional expenses may be           
          allowed if the expenses are reasonable and the tax liability,               
          including projected accruals, will be fully paid within 5 years.            
          Necessary expenses above the national and local standards are               
          “excessive necessary” expenses.  This flexibility is limited,               
          however, to cases where the taxpayer will fully pay his liability           
          within 5 years.7                                                            

               7 Given that the 60-month reasonable collection potentials             
          calculated by the OIC examiner and by the AO both substantially             
          exceed petitioner’s aggregate tax liability, it appears that a 5-           
          year installment plan may permit petitioner to make some payments           
          toward his credit card debt.  Excluding interest and penalties,             
          the monthly installment amount required to pay the aggregate                
          liability reflected on the notice of Federal tax lien filing in             
          full over 5 years is $475.  The installment agreement mailed to             
          petitioner after the face-to-face hearing specified an initial              
          monthly installment payment of $800.  Both amounts are                      
          substantially smaller than petitioner’s income available to pay             
          taxes as determined by the OIC examiner ($1,319) and the AO                 
                                                             (continued...)           





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