Attorney-at-Law

THREE STRIKES AND YER OUT

In Uncategorized on 03/08/2012 at 16:28

Spring is coming, so it’s time for baseball. And here’s an example of an old baseball phrase, courtesy of  Judge Wells, in Kenneth Melvin Pisetzner, 2012 T.C. Mem. 64, filed 3/8/12, a special date for a certain employee of Apple Corp.; happy birthday!

Back to K-Mel’s problem. He filed his return for the year at issue but didn’t pay the tax shown thereon. IRS assesses tax as shown,  sends Notice of Intent to Levy, and K-Mel asks for a CDP.

One tele-hearing is set, but K-Mel asks for adjournment. Granted, but K-Mel must file Form 433-A, the wage earner show-and-tell by the adjourned date.

K-Mel asks for second adjournment, as he needs his accountant’s help with “the form”, and said accountant is recuperating from surgery. Adjournment granted.

Next time the AO asks for adjournment, as she is on emergency leave. She adjourns CDP tele-hearing for approximately 60 days. In her letter, “(S)he wrote:  ‘Please be advised that we will make a determination in the Collection Due Process hearing you requested by reviewing the Collection administrative file and whatever information you have already provided. If you would like to provide information for our consideration, please do so within 13 days (August 17, 2011) from the date on this letter.’ On August 15, 2011, petitioner mailed [the AO] a letter requesting to reschedule the conference for after Labor Day because petitioner planned to be on vacation during the scheduled conference. [The AO] received petitioner’s letter on August 19, 2011, and she denied his request to reschedule the conference. Instead, she reviewed the information in the file and, on the basis of that information, issued a notice of determination sustaining the proposed collection action.” 2012 T.C. Mem. 64, at pp. 4-5.

Needless to say, there was no Form 433-A in the file, because K-Mel never sent one. He claims the AO never sent him the Form 433-A, but Judge Wells knocks that one out of the park. “Although petitioner does not dispute that he failed to submit a Form 433-A, he contends that the reason he failed to submit a completed Form 433-A is that [the AO] never sent him a Form 433-A. However, petitioner’s contention that [the AO] never sent him a Form 433-A is contradicted by his own letter to [the AO] dated May 31, 2011. In that letter, he referred to the ‘complex form’ sent to him by [the AO] and the ‘form and accompanying documents’ that he needed to submit to her. Accordingly, we conclude that petitioner did receive the Form 433-A from [the AO]. Although he had months to complete the Form 433-A and submit the accompanying documents, he failed to do so.” 2012 T.C. Mem. 64, at p. 5.

K-Mel had plenty of time to submit the Form 433-A. He didn’t. “Despite [the AO]’s warning in her August 4, 2011, letter that she would proceed with her review of petitioner’s case on the basis of the administrative file if petitioner failed to contact her at the scheduled time on August 17, 2011, petitioner failed to contact her at the scheduled time. His written request to reschedule the telephone conference was not timely. As we explained in Roman v. Commissioner, T.C. Memo. 2004-20: ‘The statute only requires that a taxpayer be given a reasonable chance to be heard prior to the issuance of a notice of determination.’ We conclude that petitioner was given a reasonable chance to be heard and that [the AO] did not prematurely conclude the hearing.” 2012 T.C. Mem. 64, at p. 7.

Judge Wells concludes that IRS was neither arbitrary nor capricious, and acted with a sound basis in law. K-Mel, yer out.

Takeaway: if you want an adjournment, request same timely.  File the show-and-tell form. And call before you write.

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