Rojo Concrete Construction

19-04

On July 24, 2018, the Department issued a Warrant of Levy letter to the bank of the Taxpayer containing a list of assessments of tax owed between October 1, 2010 and May 31, 2017. In response the bank issued a cashier’s check to the Department on July 30, 2018 for $18,607.95. On July 30, 2018, Mr. Guadalupe Rojo, the owner, submitted a formal protest of the levy. The main issue in this protest was whether the Department had lawfully executed collections against the Taxpayer’s bank account. The Taxpayer agreed that he owed the tax but argued that he had believed he was on a payment plan and that a levy like this could not take place. Provisions in the law allow for installment agreements with the Department which must be made in writing and require monthly payments. Once the Department enters into an agreement, “no further attempts to enforce payment of the tax by levy or injunction shall be made.” But if the Taxpayer defaults by failing to make payments or other conditions of the agreement, the Department “may proceed to enforce collection of the tax as if the agreement had not been made.” The Taxpayer had entered previous payment plans with the Department but defaulted. More recently, he explained that he had made attempts to enter into a payment plan by contacting a tax consulting firm to help him with his taxes in 2017, paying them approximately $5,000 with the goal of initiating tax payment plans with the IRS and the Department. He was unhappy with the progress they made and so, on the advice of friend, engaged another individual who held herself out to be an accountant, said she was setting up the payment plan with the Department, and requested regular payments from him in order to pay the state. The Department, however, had no record that the individual ever contacted the Department or made payments on his behalf, and he has now been unable to contact her. Though the Hearing Officer found that Mr. Rojo was honest and sympathetic, and agreed that he appeared to have a cause of action against the individual he gave money to, this did not change the fact that an actual installment agreement had not been set up with the Department. Therefore, the Hearing Officer determined that within the law the Department’s action was justified and ordered the protest denied.