                                                   [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                   FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             NOV 13, 2008
                                                          THOMAS K. KAHN
                             No. 08-10136
                                                               CLERK
                         Non-Argument Calendar


                D.C. Docket No. 06-01566-CV-T-24-MAP

ROBERT E. MARSHALL,

                                                     Plaintiff-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                     Defendant-Appellee.



                Appeal from the United States District Court
                    for the Middle District of Florida


                           (November 13, 2008)

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Appellant Robert E. Marshall (“Marshall”) appeals from the district court’s

order granting the United States’ motion for summary judgment and upholding a

notice of determination issued by the Internal Revenue Service (“IRS”) Office of

Appeals against taxpayer Marshall.

      In 1999 and 2000, the IRS assessed trust fund recovery penalties against

Marshall because his corporation failed to collect, account for, and pay certain

employment taxes. In 2005, the IRS issued a Final Levy Notice against Marshall

and scheduled a Collection Due Process (“CDP”) hearing. Marshall then

submitted an Offer in Compromise (“OIC”) to the IRS, offering to pay $16,000 in

full satisfaction of the trust fund recovery penalties, which totaled $852,115.43.

Marshall also provided the IRS with his relevant financial information so that his

OIC could be fully evaluated. Although Marshall later withdrew his request for a

CDP hearing in January 2006, he continued to engage in discussions with IRS

Appeals Officer Darryl Lee regarding a CDP hearing and the OIC. Based on the

financial information available, Lee calculated Marshall’s reasonable collection

potential to be well above Marshall’s OIC. Marshall objected to Lee’s

calculations. Lee agreed to give Marshall until August 3, 2006, to respond to

Lee’s reasonable collection potential calculations and to supplement the financial

information already provided to Lee. However, on July 28, 2006, the IRS issued

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Marshall a notice of determination informing him of its decision to sustain the

proposed levy. Marshall filed a complaint in district court challenging the notice

of determination. The United States filed a motion for summary judgment arguing

that there were no genuine issues of material fact for trial as to whether the IRS

Appeals Office correctly exercised its discretion in upholding the levy. The

district court granted the United States’ motion and consequently upheld the notice

of determination. Marshall appeals.

      We review a district court’s order granting summary judgment de novo,

reviewing the evidence in the light most favorable to the party opposing the

motion. See Patrick v. Floyd Med. Center, 201 F.3d 1313, 1315 (11th Cir. 2000).

      After reviewing the record and the parties’ briefs, we conclude that the

district court properly granted summary judgment to the United States. “In a CDP

case in which, as here, the amount of the underlying tax liability is not at issue, the

trial court and the court of appeals review the determination of the IRS appeals

officer for abuse of discretion.” Olsen v. United States, 414 F.3d 144, 150 (1st

Cir. 2005) (citing Living Care Alternatives of Utica, Inc. v. United States, 411
F.3d 621, 624–625 (6th Cir. 2005)). The district court reviewing the

determination of the IRS appeals officer generally conducts its review on the

administrative record. Camp v. Pitts, 411 U.S. 138, 142, 93 S. Ct 1241, 1244

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(1973). Treasury regulations require an IRS appeals officer to consider: (1)

whether the IRS met the requirements of any applicable law or administrative

procedure; (2) any issues appropriately raised by the taxpayer; (3) any appropriate

spousal defenses raised by the taxpayers; (4) any challenges made by the taxpayer

to the appropriateness of the proposed collection actions; (5) any offers by the

taxpayer for collection alternatives; and (6) whether any proposed collection

action balances the need for the efficient collection of taxes, with the legitimate

concern of the person that any collection action be no more intrusive than

necessary. Treas. Reg. § 301.6330-1(e)(3)A-E1 (2006).

      Because the IRS failed to consider his response to IRS Appeals Officer

Lee’s reasonable collection potential calculations, Marshall argues that the IRS

decided to sustain the Final Levy Notice based on an erroneous assessment of law

and facts, and therefore, abused its discretion. The United States argues that there

was no abuse of discretion on the part of the IRS. Because Lee fully complied

with the requirements of the Internal Revenue Code, the Treasury Regulations,

and the Internal Revenue Manual, we agree. Here, the record contains undisputed

evidence that Lee considered all relevant financial records submitted by Marshall

as well as the IRS’s records of Marshall’s account. Marshall concedes that while

the United States had to consider Marshall’s OIC, the United States had no

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obligation to negotiate the OIC with Marshall. Thus, we agree with the district

court that there is no genuine issue of material fact as to whether the IRS abused

its discretion to sustain the levy against Marshall.

      Accordingly, we affirm the district court’s order granting summary

judgment in favor of the United States.

      AFFIRMED.




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