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ISCR Case 17-03364.h1 — CASE

ISCR Case 17-03364.h1denied

Case Headnote

ISCR Case No. 17-03364.h1

deniedJun 27, 2018· Hon. Elizabeth M. Matchinski· hearing

Summary

The applicant, a 48-year-old married mother of five, faced security clearance denial under Guideline F due to failure to timely file federal income tax returns for tax years 2014, 2015, and 2016, and a history of delinquent debts totaling $7,061. Despite settling her debts, the judge expressed concerns about her future compliance with tax obligations, leading to the denial of her clearance.

Under Guideline F (Financial Considerations), the Statement of Reasons alleged the following: Applicant had not yet filed her federal income tax returns for tax years 2014 through 2016 (1.a). Three medical debts from 2011 totaling $35 (1.b). One medical debt from 2012 totaling $340 (1.c). One medical debt from 2011 totaling $254 (1.d). One medical debt from 2011 totaling $207 (1.e). A collection account with a balance of $449 referred in January 2016 (1.f). A $6,000 credit card debt from June 2014 (1.g).

The judge denied the clearance. The government raised disqualifying conditions AG ¶ 19(a), AG ¶ 19(c), AG ¶ 19(f). The decision turned on the following: The applicant failed to file federal income tax returns for tax years 2014, 2015, and 2016 until February 2018; The applicant had a history of delinquent debts totaling $7,061, which were only addressed after the issuance of the SOR; Concerns remained about the applicant's reliability to comply with future tax-filing deadlines.

Why the Applicant Was Denied

The applicant failed to file federal income tax returns for tax years 2014, 2015, and 2016 until February 2018.
The applicant had a history of delinquent debts totaling $7,061, which were only addressed after the issuance of the SOR.
Concerns remained about the applicant's reliability to comply with future tax-filing deadlines.

Conditions Referenced

Disqualifying

AG ¶ 19(a)appliedInability to Satisfy Debts
AG ¶ 19(c)appliedA History of Not Meeting Financial Obligations
AG ¶ 19(f)appliedFailure to File or Fraudulently Filing Annual Federal, State, or Local Income Tax Returns or Failure to Pay Annual Federal, State, or Local Income Tax as Required

Key Rule Quoted

“The protection of the national security is the paramount consideration.”

Procedural Posture

SOR issuedOct 16, 2017
Answer filedNov 1, 2017
Hearing heldFeb 7, 2018rescheduled from 02/09/2018
Decision dateJun 27, 2018

Cite For

Failure to Timely File Tax Returns as a Disqualifying Condition Under Guideline F
Impact of Financial Issues on Security Clearance Eligibility
Consideration of Applicant's Financial History in the Whole-person Analysis

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Standardized Decision Profile

SEAD-4 Guideline F · descriptive summary of a decided case

Posture: Decision on RecordDecided: denied

The judge found against the applicant on the failure to file federal income tax returns for tax years 2014 through 2016, establishing a disqualifying condition under Guideline F. However, the applicant was found to have resolved several delinquent debts, leading to favorable findings on the remaining allegations.

¶	Allegation	Finding	Type	Response	Disqualifying (¶19)	Mitigating applied (¶20)	Mitigation
1.a	Applicant had not yet filed her federal income tax returns for tax years 2014 through 2016	Against Applicant	Tax Filing Failure	Admitted	(f) failure to file / fraudulent filing of tax returns or unpaid tax	—	—
1.b	Three medical debts from 2011 totaling $35 $35	For Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(g) arrangements made with the tax authority; in compliance	Documented Debt Paid in Full
1.c	One medical debt from 2012 totaling $340 $340	For Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(g) arrangements made with the tax authority; in compliance	Documented Debt Paid in Full
1.d	One medical debt from 2011 totaling $254 $254	For Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(g) arrangements made with the tax authority; in compliance	Documented Debt Paid in Full
1.e	One medical debt from 2011 totaling $207 $207	For Applicant	Medical Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(g) arrangements made with the tax authority; in compliance	Documented Debt Paid in Full
1.f	A collection account with a balance of $449 referred in January 2016 $449	For Applicant	Unspecified Financial	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(g) arrangements made with the tax authority; in compliance	Documented Debt Paid in Full
1.g	A $6,000 credit card debt from June 2014 $6,000	For Applicant	Credit Card Debt	Admitted	(a) inability to satisfy debts (c) a history of not meeting financial obligations	(g) arrangements made with the tax authority; in compliance	Documented Debt Paid in Full

Descriptive standardized rendering of a decided public case (Guideline F). The verbatim source decision is shown in full below.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

HEARING

APPEARANCES

DEPARTMENT OF DEFENSE DEFENSE OFFICE OF HEARINGS AND APPEALS

In the matter of: ) ) ) ISCR Case No. 17-03364 ) Applicant for Security Clearance )

For Government: Robert Blazewick, Esq., Department Counsel For Applicant: Thomas Albin, Esq.

06/27/2018 ______________

STATEMENT OF CASE

______________

MATCHINSKI, Elizabeth M., Administrative Judge:

Applicant’s federal income tax returns for tax years 2014, 2015, and 2016 were not filed until February 2018. Collection debts totaling $7,061 have been paid or settled. Her financial issues have been addressed, but concerns persist about whether she can be relied on to comply with tax-filing deadlines in the future. Clearance is denied.

Statement of the Case

On October 16, 2017, the Department of Defense Consolidated Adjudications Facility (DOD CAF) issued a Statement of Reasons (SOR) to Applicant, detailing a security concern under Guideline F, financial considerations. The SOR explained why the DOD CAF was unable to find it clearly consistent with the national interest to grant or continue security clearance eligibility for her. The DOD CAF took the action under Executive Order (EO) 10865, Safeguarding Classified Information within Industry (February 20, 1960), as amended; DOD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program (January 2, 1992), as amended (Directive); and the National Security Adjudicative Guidelines for Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive Position (AG) effective within the DOD on June 8, 2017. Applicant responded to the SOR through her Counsel on November 1, 2017, and requested a hearing before an administrative judge from the Defense Office of Hearings and Appeals (DOHA). On January 9, 2018, the case was assigned to me to conduct a hearing to determine whether it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. On January 11, 2018, I scheduled a hearing for February 9, 2018. With the agreement of the parties, on January 24, 2018, I rescheduled her hearing for February 7, 2018.

At the hearing, four Government exhibits (GEs 1-4) and five Applicant exhibits (AEs A-E) were admitted in evidence. A December 11, 2017 letter forwarding discovery of the GEs to Applicant’s counsel was marked as a hearing exhibit (HE 1) but not admitted as an evidentiary exhibit. Applicant testified, as reflected in a transcript (Tr.) received on February 15, 2018.

I held the record open for two weeks for additional documents from Applicant. On February 9, 2018, Applicant submitted three pages, consisting of a copy of the first pages of AEs B, C, and D but bearing date stamps from the IRS. At Applicant’s request, the pages were incorporated within AEs B-D without objection.

Summary of SOR Allegations

The SOR alleges under Guideline F that, as of October 16, 2017, Applicant had not yet filed her federal income tax returns for tax years 2014 through 2016 (SOR ¶ 1.a), and that she owed delinquent debts totaling $7,061 (SOR ¶¶ 1.b-1.g). When she answered the SOR on November 1, 2017, Applicant admitted that her federal tax returns for 2014 through 2016 were delinquent but that she would be filing them at that time. Applicant admitted that she had owed the debts as alleged in SOR ¶¶ 1.b-1.f, but that they had since been paid. Regarding the largest alleged debt, a $5,776 collection balance, Applicant admitted the original indebtedness, which had been renegotiated and resolved.

FINDINGS OF FACT

After considering the pleadings, exhibits, and transcript, I make the following findings of fact.

Applicant is a 48-year-old married mother of five children. She has two sons now ages 28 and 26 and three daughters now ages 18, 14, and 13. Applicant worked at a local casino from February 2002 to January 2014, when she was terminated after she exceeded the company policy for sick leave to care for her children. Her household income declined about $400 a week. After about 12 years working in construction for a company, Applicant’s spouse opened his own home improvement business in 2012. In 2014, he reorganized his business and became a limited liability company (LLC). She is on the license for his business. Applicant had been unemployed for over two years when she began working as a pipefitter for a defense contractor in August 2016. She was laid off in mid-October 2017 when she received the SOR, but she is subject to recall should her clearance eligibility be adjudicated favorably. (GEs 1-2; Tr. 17-20, 41-45, 47.) On April 26, 2016, Applicant completed and certified to the accuracy of a Questionnaire for National Security Positions (SF 86). She responded affirmatively to an inquiry concerning whether she had failed to file or pay federal, state, or other taxes in the last seven years. She disclosed that she had yet to file her federal income tax return for tax year 2014, but indicated that the paperwork was with a professional tax firm. She expected the return to be filed by May 15, 2016, and that she would owe approximately $1,000. Applicant responded affirmatively to SF 86 inquiries concerning delinquency on routine accounts and listed a $6,000 credit card debt (SOR ¶ 1.g) from June 2014. She attributed the debt to the loss of her income and explained that she had arranged to make monthly payments. (GE 1.)

A check of Applicant’s credit on June 17, 2016, revealed that the credit card listed on her SF 86 had a $5,776 balance, of which $1,192 was past due. Her account first became delinquent in approximately September 2014. Three medical debts from 2011 ($35, SOR ¶ 1.b; $254, SOR ¶ 1.d; and $207, SOR ¶ 1.e) and one medical debt from 2012 ($340, SOR ¶ 1.c) were in collection status. (GE 3.) Other household bills were given priority. (Tr. 40.)

Applicant was interviewed by an authorized investigator for the Office of Personnel Management (OPM) on February 27, 2017. Applicant indicated that she had collected unemployment compensation after she lost her job at the casino. When confronted with the adverse information on her June 2016 credit report, she did not recognize the collection accounts because her spouse handled their finances. About the credit card delinquency listed on her SF 86, Applicant stated that she had stopped making her monthly payment of $160 about three months ago because of insufficient income, but she expected to resume payments in March 2017. Concerning her delinquent federal income tax return for tax year 2014, Applicant explained that she and her spouse tried to file their personal and business taxes on their own and became frustrated. She admitted that they also had yet to file their 2015 federal return. Applicant asserted that they had hired a tax professional to file their tax returns for tax years 2014 through 2016.1 (GE 2.) They had a tax firm on retainer to prepare her spouse’s business taxes before the 2014 tax returns were due. (Tr. 22.)

As of May 3, 2017, the $35, $254, and $207 medical collection debts were still listed on her credit report as unresolved debts. Additionally, there was no progress shown on her $5,776 credit card debt (SOR ¶ 1.g), which had been in collection status since October 2015. A collection agency was reporting that a $449 debt was placed with the entity in January 2016, and that debt was unpaid (SOR ¶ 1.f). Applicant and her spouse were reportedly then current on their home mortgage loan, although it had been delinquent as of October 2016. (GE 4.) On May 24, 2017, Applicant had a second subject interview to discuss her latest credit report. She had no updated information about the filing of her delinquent income tax returns. She indicated that she had approximately $8,000 in 401(k) assets from her casino employment that she planned to cash out to repay her debts, including the $5,776 credit card delinquency that she still owed. Applicant admitted that she largely ignored medical bills and correspondence from collection entities. Her mortgage and other bills took priority and with her spouse being self-employed, their income has been inconsistent. Applicant did not dispute any of the debts listed on her credit report, which she planned to repay with the 401(k) money. She denied having had any financial counseling. (GE 2.)

On May 25, 2017, Applicant met with the OPM investigator to complete a personal financial statement. She estimated that her and her spouse’s net household income was $3,760 per month, but her spouse’s business income varied. She reported net monthly expenses of $3,370, bank deposits of $200, and $8,713 in 401(k) assets. (GE 2.)

On October 16, 2017, the DOD CAF issued the SOR to Applicant. She received the SOR on October 20, 2017. (Answer.) Over the next two weeks, she paid in full the debts in SOR ¶¶ 1.b-1.f. She had funds available to pay the debts piecemeal but decided to pay them all at once with funds saved from her paychecks. She found contact information for the collection accounts online and called the creditors. She negotiated a settlement for the $5,775 credit card delinquency (SOR ¶ 1.g). She paid $2,648 by check on October 25, 2017, and the creditor issued a 1099-C cancellation of debt.2 Applicant understands that she has to declare the cancelled debt as income on their tax returns for tax year 2017, which had not yet been filed as of February 2018. (AE A; Tr. 21, 25-33.)

After consulting with her attorney in October 2017, Applicant and her spouse retained an accountant to prepare their delinquent federal and state personal income tax returns. (Tr. 21.) The accountant finished their joint federal and state returns for tax years 2014, 2015, and 2016 on January 29, 2018. On February 9, 2018, Applicant hand-carried their federal returns for those tax years to their local IRS office. (AEs B-D; Tr. 23-24.) For tax year 2014, Applicant and her spouse’s federal adjusted gross income was $93,444, of which $7,228 was her unemployment compensation, which she received for six months. (Tr. 48.) Another $38,516 of their income was from gambling winnings. According to their joint return, they overpaid their federal income taxes by $3,482. (AE B.) For tax year 2015, their adjusted gross income was $51,585. They overpaid their federal income taxes by $1,132. (AE C.) For tax year 2016, their adjusted gross income was $66,335. They overpaid their federal income taxes by $731. (AE D.) Their tax preparer calculated that they owed $274 in state income taxes for 2014, but were entitled to state income tax refunds of $973 for tax year 2015 and $210 for tax year 2016.3 They anticipated federal and state tax refunds totaling $6,254, before the assessment of any penalties and interest for late filing. (AE E.)

At her hearing, Applicant initially explained that the delay in filing their personal tax returns was because of her spouse’s business and that they “[n]eeded a lot of paperwork, more paperwork than we realized unfortunately. Not paying attention to what we should have been doing in the first place so that is on us.” (Tr. 19-20.) She later clarified that her spouse’s creation of the LLC in 2014 had tax-filing implications that they had not realized beforehand. In addition to needing “a lot of paperwork,” she claimed she did not know that she and her spouse had to file personal tax returns separate from his business tax returns before they began addressing their delinquent tax returns for tax years 2014 through 2016 after she received the SOR. (Tr. 45.) Regarding the status of their business taxes, Applicant testified that the tax firm handling those returns “has all the stuff,” and that there was a problem with the 2013 tax-year business return. There has been correspondence between the IRS and their tax firm, which is now awaiting a letter from the IRS so that the tax firm “can finish the rest of [their] case.” (Tr. 22.)

Applicant testified at her hearing that she and her spouse share the responsibility for paying the bills. (Tr. 39.) She does not plan on ignoring any debt obligations in the future. The recommendation to deny her a security clearance because of the delinquent debts was “a wake-up call for everyone.” She no longer uses credit cards for purchases. (Tr. 36.) Available credit reports show that she last opened a credit card account in May 2013. (GEs 3-4.)

When Applicant was laid off in mid-October 2017, her household net income declined by $540 per week. They have managed to pay their bills with her spouse’s income from his home improvement business and with her unemployment compensation of $287 a week. (Tr. 48-49.)

POLICIES

The U.S. Supreme Court has recognized the substantial discretion the Executive Branch has in regulating access to information pertaining to national security, emphasizing that “no one has a ‘right’ to a security clearance.” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). When evaluating an applicant’s suitability for a security clearance, the administrative judge must consider the adjudicative guidelines. In addition to brief introductory explanations for each guideline, the adjudicative guidelines list potentially disqualifying conditions and mitigating conditions, which are required to be considered in evaluating an applicant’s eligibility for access to classified information. These guidelines are not inflexible rules of law. Instead, recognizing the complexities of human behavior, these guidelines are applied in conjunction with the factors listed in the adjudicative process. The administrative judge’s overall adjudicative goal is a fair, impartial, and commonsense decision. According to AG ¶ 2(a), the entire process is a conscientious scrutiny of a number of variables known as the “whole-person concept.” The administrative judge must consider all available, reliable information about the person, past and present, favorable and unfavorable, in making a decision. The protection of the national security is the paramount consideration. AG ¶ 2(b) requires that “[a]ny doubt concerning personnel being considered for national security eligibility will be resolved in favor of the national security.” In reaching this decision, I have drawn only those conclusions that are reasonable, logical, and based on the evidence contained in the record. Under Directive ¶ E3.1.14, the Government must present evidence to establish controverted facts alleged in the SOR. Under Directive ¶ E3.1.15, the applicant is responsible for presenting “witnesses and other evidence to rebut, explain, extenuate, or mitigate facts admitted by applicant or proven by Department Counsel. . . .” The applicant has the ultimate burden of persuasion to obtain a favorable security decision.

A person who seeks access to classified information enters into a fiduciary relationship with the Government predicated upon trust and confidence. This relationship transcends normal duty hours and endures throughout off-duty hours. The Government reposes a high degree of trust and confidence in individuals to whom it grants access to classified information. Decisions include, by necessity, consideration of the possible risk that the applicant may deliberately or inadvertently fail to safeguard classified information. Such decisions entail a certain degree of legally permissible extrapolation about potential, rather than actual, risk of compromise of classified information. Section 7 of EO 10865 provides that decisions shall be “in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned.” See also EO 12968, Section 3.1(b) (listing multiple prerequisites for access to classified or sensitive information).

ANALYSIS

Guideline F: Financial Considerations

The security concerns about financial considerations are articulated in AG ¶ 18:

Failure to live within one’s means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual’s reliability, trustworthiness, and ability to protect classified or sensitive information. Financial distress can also be caused or exacerbated by, and thus can be a possible indicator of, other issues of personnel security concern such as excessive gambling, mental health conditions, substance misuse, or alcohol abuse or dependence. An individual who is financially overextended is at greater risk of having to engage in illegal or otherwise questionable acts to generate funds. . . .

Applicant and her spouse failed to timely file their federal income tax returns for tax years 2014, 2015, and 2016. Disqualifying condition AG ¶ 19(f), “failure to file or fraudulently filing annual Federal, state, or local income tax returns or failure to pay annual Federal, state, or local income tax as required,” is established. Applicant also did not file her state income tax returns for those tax years before their due dates. Her noncompliance with her state tax-filing obligation for three consecutive years cannot be considered in disqualification because it was not alleged. However, it is relevant to assessing her judgment under the whole-person concept and matters in reform.4 Regarding her routine consumer accounts, Applicant incurred a $5,774 balance on an account that went unpaid until October 2017. Four medical debts incurred between 2011 and 2012 totaling approximately $836 were placed for collection. A credit card issuer referred a $449 balance for collection in January 2016. These delinquencies establish disqualifying conditions AG ¶ 19(a), “inability to satisfy debts,” and AG ¶ 19(c), “a history of not meeting financial obligations.”

The burden is on Applicant to mitigate the evidence of financial delinquency and her noncompliance with her income tax filing obligation for three consecutive years. One or more of the following conditions under AG ¶ 20 may apply:

(a) the behavior happened so long ago, was so infrequent, or occurred under such circumstances that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;

(b) the conditions that resulted in the financial problem were largely beyond the person’s control (e.g., loss of employment, a business downturn, unexpected medical emergency, a death, divorce or separation, clear victimization by predatory lending practices, or identity theft), and the individual acted responsibly under the circumstances;

(c) the person has received or is receiving counseling for the problem from a legitimate and credible source, such as a non-profit credit counseling service, and there are clear indications that the problem is being resolved or is under control; and

(g) the individual has made arrangements with the appropriate tax authority to file or pay the amount owed and is in compliance with those arrangements. Applicant’s noncompliance with her income tax filing obligation for three consecutive years is considered a course of conduct that persisted until she filed her delinquent returns. AG ¶ 20(a) cannot reasonably apply because the tax years involved are relatively recent, and she failed to give priority to her tax filings before October 2017. Similarly, although her medical debts “happened so long ago,” they went unpaid until October 2017. While she may not have known about the medical debts before her February 2017 OPM interview, she largely ignored those debts until after the SOR was issued. Similarly, Applicant knew that she had defaulted on the credit card with a $5,776 balance, and it too went unresolved before October 2017.

The loss of Applicant’s longtime job at the casino in January 2014 and her subsequent unemployment of over two years compromised her finances. The circumstance that led to her employment termination was within her control in that she called in sick too many times, but her children’s illnesses were not foreseeable. Even so, Applicant’s and her spouse’s joint tax return for 2014 shows adjusted gross income of $93,444 for 2014, which included $38,516 in gambling winnings. Applicant had some funds to continue to make the payments on her credit card in 2014. She did not make it a priority. AG ¶ 20(b) has some applicability to her failure to address her credit card delinquency in 2015, when her household income declined to $51,585 because of her unemployment. However, AG ¶ 20(b) requires that an individual act responsibly once the financial crisis has passed. Applicant began working for a defense contractor in August 2016, and her annual household income increased by almost $15,000 over the previous year. Applicant was placed on notice during her February 2017 OPM interview of the medical collection debts on her credit record. One of them was for only $35. Yet she made little to no effort to address the delinquencies on routine accounts before she received the SOR in October 2017.

Regarding her past-due personal income tax returns, Applicant and her spouse had a tax firm working on his business taxes as far back as tax year 2013. Applicant asserts that she was unaware before October 2017 that she and her spouse were legally obligated to file personal income tax returns separate from his business returns. The evidence shows that the business returns have not yet been filed, in part because Applicant and her spouse did not give priority to gathering the paperwork needed to ensure that the business returns were filed timely. While it may be her spouse’s home improvement business, Applicant is on the license. She admitted at her hearing that she and her spouse did not pay attention to the issue. AG ¶ 20(b) does not apply to her tax filing problems.

Applicant’s satisfaction in full of the debts in SOR ¶¶ 1.b-1.fand her settlement of the credit card delinquency in SOR ¶ 1.gin October 2017 implicate AG ¶ 20(c) in part because the debts have been resolved. Applicant testified that the security clearance proceedings were a “wake-up call” for her and her spouse regarding the manner in which they handle their finances. She testified that she no longer uses any credit cards for purchases, and there is no evidence that she has opened any credit card accounts since May 2013. However, she has not had any credit counseling that is required for AG ¶ 20(c) to fully apply. Her case for mitigation under AG ¶ 20(d) falls short when the debts were paid only after she received the SOR. She admitted that it was not for lack of income but that it was her decision to pay all the debts at once. However, the timing of her debt resolution tends to indicate that the issuance of the SOR was the impetus for her to resolve her long overdue debts.

Applicant’s belated filing in February 2018 of her income tax returns for tax years 2014 through 2016 warrant consideration of ¶ 20(c) and ¶ 20(g). Even where tax problems have been corrected and an applicant is motivated to present such problems in the future, the administrative judge is not precluded from considering an applicant’s trustworthiness in light of longstanding prior behavior evidencing irresponsibility. See e.g., ISCR Case No. 14- 01894 at 5 (App. Bd. Aug. 2015). The Appeal Board has long held that the failure to file tax returns suggests a problem with complying with well-established government rules and systems. See e.g., ISCR Case No. 14-04437 (App. Bd. Apr. 15, 2016.) Moreover, the Appeal Board recently reaffirmed that the timing of corrective action is an appropriate factor to consider in applying AG ¶ 20(g). See e.g., ISCR Case No. 17-01382 at 4 (App. Bd. May 16, 2018), citing ISCR Case No. 17-01807 at 3-4 (App. Bd. Mar. 7, 2018). In reversing favorable clearance grants to applicants with tax issues by DOHA judges in ISCR Case No. 17-01382 and ISCR Case No. 16-01211 (App. Bd. May 30, 2018), the Appeal Board noted that applicants who only begin to address their delinquent tax returns when their personal interests are at stake may not comply with laws, rules, and regulations when their immediate interests are not imperiled.

There was a problem with the tax return for her spouse’s business from 2013 that is still in negotiation with the IRS. Whatever the problem was with that tax return, her spouse reorganized into a LLC in 2014, which required more paperwork for their business returns. If, as she claimed at her hearing, a professional tax firm was working on her business taxes for 2013, they could have asked for advice about their legal responsibility regarding filing personal tax returns. Applicant now asserts that she did not realize before October 2017 that she had to file a personal income tax return separate from the business. However, on her April 2016 SF 86, she indicated that her delinquent federal tax return for 2014 would be filed by May 15, 2016. When interviewed in late February 2017, Applicant related that she and her spouse tried to file their tax returns on their own for their personal and business taxes, but they became frustrated and did not file. She told the investigator that they had hired a tax professional to file their 2014, 2015, and 2016 taxes. She was asked again about her tax filings in May 2017 and could provide no updates. There is no evidence that they had provided any paperwork about their personal incomes to the tax firm dealing with the business taxes, despite being on notice that her tax filing issues were of concern to the DOD. Applicant took action to resolve her personal tax matters only after she received the SOR. Her belated filing of her tax returns for tax years 2014 through 2016 in February 2018 is not entitled to controlling weight in mitigation under the circumstances. Tax overpayments for each of the tax years at issue do not justify her years of disregard of her tax-filing obligation.

WHOLE PERSON CONCEPT

In assessing the whole person, the administrative judge must consider the totality of an applicant’s conduct and all relevant circumstances in light of the nine adjudicative process factors in AG ¶ 2(d). The analysis under Guideline F is incorporated in my whole- person analysis. Some of the factors in AG ¶ 2(d) were addressed under that guideline, but some warrant additional comment.

The security clearance adjudication involves an evaluation of an applicant’s judgment, reliability, and trustworthiness in light of the security guidelines in the Directive. See ISCR Case No. 09-02160 (App. Bd. Jun. 21, 2010). Applicant may well have had to rely on her spouse for help in completing their income tax returns, but she also ignored collection notices and could have paid some of the debts of concern to the DOD before she faced denial of clearance eligibility. The security clearance adjudication is not intended to punish an applicant for past mistakes or shortcomings. At the same time, the Appeal Board has repeatedly held that the government need not wait until an applicant mishandles or fails to safeguard classified information before denying or revoking security clearance eligibility. See, e.g., ISCR Case No. 08-09918 (App. Bd. Oct. 29, 2009, citing Adams v. Laird, 420 F.2d 230, 238-239 (D.C. Cir. 1969)). It is well settled that once a concern arises regarding an applicant’s security clearance eligibility, there is a strong presumption against the grant or renewal of a security clearance. See Dorfmont v. Brown, 913 F. 2d 1399, 1401 (9th Cir. 1990). Under Appeal Board precedent, an applicant who waits to address tax issues until his or her immediate interests are at stake does not show sound judgment and reliability. Applicant’s rectification of her tax filings is too recent to create a track record of reasonable assurances that she can be counted on to comply with tax filing deadlines in the future. Based on the evidence before me, it would be premature to conclude that it is clearly consistent with the national interest to grant or continue security clearance eligibility for Applicant.

Formal Finding

Formal finding for or against Applicant on the allegations set forth in the SOR, as required by section E3.1.25 of Enclosure 3 of the Directive, are:

Paragraph 1, Guideline F: AGAINST APPLICANT

Subparagraph 1.a: Against Applicant

Subparagraphs 1.b-1.g: For Applicant

CONCLUSION

In light of all of the circumstances, it is not clearly consistent with the national interest to grant or continue Applicant’s eligibility for a security clearance. Eligibility for access to classified information is denied.

_____________________ Elizabeth M. Matchinski Administrative Judge

FOOTNOTES

1 There is no indication that Applicant was asked about her state income tax returns, which presumably had also not been filed. Applicant and her spouse have lived at the same residence since March 1998. The state in which they live and work has a state income tax obligation. State regulation (§ 12-702(c) (1)) provides that the federal rules for determining whether a husband and wife qualify for filing a joint return. If a husband and wife file a joint return, or if neither spouse files a federal income tax return, they shall file a joint state income tax return even though one spouse had no income. 2 Applicant testified that she believed the creditor sent her a 1099 form, but she was not certain. (Tr. 37.) Given that she had to report the amount as income on her tax returns, it is likely that the creditor sent her a 1099-C.

3 Although Applicant did not submit her state tax returns in evidence, the accountant’s statement showing she was entitled to refunds for 2015 and 2016 and underpaid her taxes for 2014 tends to indicate that her state returns were completed at that time as well. 4 On May 30, 2018, the Appeal Board reversed a favorable grant of clearance to an applicant who owed a sizeable tax lien and failed to timely file federal income tax returns for tax years 2002 to 2005. In a footnote, the Board noted that the SOR alleged only the tax lien that resulted from the failure to file the returns and that the SOR was not amended at the hearing to allege the non-filing. The Board strongly encouraged parties and administrative judges in future similar situations to make appropriate amendments to the SOR, as permitted under ¶ 3.1.17 of the Directive. See ISCR Case No. 16-01211 at n.1 (App. Bd. May 30, 2018.) There was no motion to amend the SOR at Applicant’s hearing held on February 7, 2018, and no notification to Applicant before her hearing that her state income tax filings were an issue. Her noncompliance with her state tax-filing obligation for three years may properly be considered under the following circumstances:

(a) to assess an applicant’s credibility; (b) to evaluate an applicant’s evidence of extenuation, mitigation, or changed circumstances; (c) to consider whether an applicant has demonstrated successful rehabilitation; (d) to decide whether a particular provision of the Adjudicative Guidelines is applicable; or (e) to provide evidence for a whole person analysis under Directive Section 6.3

See ISCR Case No. 03-20327 at 4 (App. Bd. Oct. 26, 2006).