In Uncategorized on 03/28/2012 at 17:56

Carol Diane Gray is too late to review collection, but in time for innocent spouse relief and abatement of interest, rules Judge Gale, in Carol Diane Gray, 138 T.C. 13, filed 3/28/12.

Carol Diane petitioned to review Appeals’ affirmance of a lien and levy against her, for Section 6015(e) innocent spouse relief and for Section 6404(h) abatement of interest. Carol Diane emerges the winner in two out of three.

Judge Gale extends the usual judicial indulgence to pro ses like Carol Diane: “All claims in a petition should be broadly construed so as to do substantial justice, and a petition filed by a pro se litigant should be liberally construed. See Rule 31(d); Haines v. Kerner, 404 U.S. 519, 520 (1972); Lukovsky v. Commissioner, T.C. Memo. 2010-117; Med. Practice Solutions, LLC v. Commissioner, T.C. Memo. 2009-214; Swope v. Commissioner, T.C. Memo. 1990- 82. Accordingly, we must consider whether the petition, liberally construed, sets out a claim over which we have jurisdiction.” 138 T.C. 13, at p. 7.

But Carol Diane strikes out on her Sections 6230 and 6330 requests, for want of jurisdiction. The magic 30-day date expired the day before her petition was postmarked. The Section 7502 “received when postmarked” bye doesn’t help, because the postmarked is a day late (and more than a dollar short). Congress meant thirty days when they said thirty days, and Tax Court’s tears cannot wash out a word of it.

Carol Diane argues that since her underlying tax liability was part of the collection determination, she should get ninety days, not thirty. No, says Judge Gale, separate considerations rule collections, and whether or not the underlying liability might have been contested plays no role.

Next Carol Diane claimed that since Appeals issued a separate determination abating additions to tax, so she should get thirty days from the second determination. No, says Judge Gale, the abatement made no reference to collection and there is no stand-alone Section 6404 proceeding.

Carol Diane did ask for innocent spouse status, however, and Appeals didn’t mention it in their collection determination, so Carol Diane is timely for Section 6015(f) equitable relief. But the record is incomplete. Carol Diane asked for innocence once before and didn’t get it, so no second bite, except if grounds or facts sufficiently dissimilar between previous request and this one. But the record doesn’t show anything about the old and the new, so further proceedings needed to see how dissimilar, if at all.

As to abatement, IRS claims the notice didn’t determine that, but Judge Gale blows that off: “The notice of determination issued to petitioner in connection with her section 6330 hearing states: ‘A review of your request for abatement shows that there is no basis for interest abatement, based on the criteria shown in IRC section 6404(e)’ and that ‘It was determined that the conditions of IRC section 6404(e) with regard to the abatement of interest were not met.’ The notice of determination satisfies us that petitioner made a request for interest abatement under section 6404(e) during her section 6330 hearing and that Appeals made a determination to deny it.

“To the extent respondent may be suggesting that there was no determination denying interest abatement because it did not occur in connection with a stand-alone request for interest abatement under section 6404 or because it was not made on a Letter 3180, Final Determination Letter for Fully Disallowing an Interest Abatement Claim, his contention is meritless.” 138 T.C. 13, at pp. 16-17.

Quoting Cooper (see my blogpost “The Whistleblower Blows It”, 6/20/11), Judge Gale says: “Regarding the form in which the determination was made, as we recently observed in Cooper v. Commissioner, 135 T.C. 70, 75 (2010): ‘the name or label of a document does not control whether the document constitutes a determination * * * our jurisdiction is established when the Commissioner issues a written notice that embodies a determination.’ 138 T. C. 13, at p. 17.

So Carol Diane gets to fight over her innocence and her interest.

Not bad, Carol Diane.


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