Attorney-at-Law

“YOU HAVE TO FULFILL THE REQUIREMENTS”

In Uncategorized on 08/20/2013 at 18:27

 I remember a colleague being confronted, many years ago, by a particularly persnickety probate court clerk whose invariable incantation was “You have to fulfill the requirements.”

Well, Judge Kathleen Kerrigan isn’t particularly persnickety, but Eric Onyango didn’t, and neither did brother Maurice, so both of Eric’s cases get tossed in Eric Onyango, Docket No. 21922-11, filed 8/20/13.

First Eric petitions, but IRS claims they never sent him a SNOD, so petition number one gets dismissed. Then Eric petitions again, for the same years, and it turns out IRS did send him a SNOD after all. So petition one gets reinstated, but IRS claims Eric was late both times.

Eric says he didn’t get the SNOD until long after the ninetieth day after mailing, and anyway he designated brother Maurice as his fiduciary before day ninety, so the SNOD should have been mailed to brother Maurice in Nairobi, Kenya.

Wrong, says Judge Kerrigan. Eric didn’t get the designation right, and brother Maurice’s later correspondence didn’t cure the defect.

The Section 6903 regulations govern.

“Section 301.6903-1, Proced. & Admin. Regs., prescribes the manner in which the notice of fiduciary relationship must be filed. First, the notice must be given by the fiduciary. See sec. 301.6903-1(a), Proced. & Admin. Regs. (‘Every person acting for another person in a fiduciary capacity shall give notice thereof * * *’). Second, the notice must be signed by the fiduciary and must be filed with the I.R.S.Center where the return of the person for whom the fiduciary is acting is required to be filed. See sec. 301.6903-2(b)(2), Proced. & Admin. Regs. Third, the notice must state the name and address of the person for whom the fiduciary is acting and describe the nature of the liability, including the type of tax and the years involved.

“Section 301.6903-2(c), Proced. & Admin. Regs., provides that if the notice of the fiduciary relationship is not filed before the sending of the notice of a deficiency to the last known address of the taxpayer, no notice of the deficiency will be sent to the fiduciary. ‘In such a case the sending of the notice to the last known address of the taxpayer * * * will be a sufficient compliance with the requirements of the Code, even though such taxpayer * * * is under a legal disability * * *’. Id.” Order, at  pp. 4-5.

Neither Eric nor brother Maurice can furnish certified mailings of the correspondence they claim gave notice, and IRS claims what they did furnish doesn’t fulfill the requirements. Judge Kerrigan agrees.

So Eric is out, and his motion to restrain collection falls because there is no appeal from the SNOD nor valid petition before Tax Court to invoke the Section 6330(c) restraint.

But Eric does get his medical evidence sealed.

Takeaway– You have to fulfill the requirements.

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