Following on from Judge Mark V. Holmes, a/k/a The Judge Who Writes Like a Human Being, (see my blogpost “Trust, But Veriify”, 11/5/13), that obliging jurist Judge Gustafson admonishes Appeals to make sure that a SNOD was properly served (that is, mailed to taxpayer’s last known address) before concluding taxpayer had a prior opportunity to contest and blew it.

This time the putative precluded one is Albert Sofian, Docket No. 17960-12L, filed 11/8/13.

Remember Al? Not sure? Well, check out my blogpost “You Can’t Have One Without The Other”, 8/22/13, and you’ll doubtless repeat the immortal words of Jim Steinman, as sung by the Soul of French Canada, Céline Marie Claudette Dion, “It’s All Coming Back to Me Now”.

Al claims he had oodles of basis when he unloaded $114 million in stock, and never got a SNOD. But letters from Appeals told him he couldn’t contest liability at the CDP when IRS tried to collect, as he had the chance.

Of course, Al apparently has yet to lay bare his proofs of basis, so Judge Gustafson tells him to do it “immediately”, even though it was due last week.

But Judge Gustafson has some words for Appeals as well.

“…respondent [IRS], in preparing to show ‘verification’ under section 6330(c)(1) in view of Mr. Sofian’s position that he did not receive the notice of deficiency, shall note: (a) that the CDP settlement officer stated that Appeals ‘[m]ay not be able to verify SNOD as it was issued in 2004’ (Ex. V to respondent’s motion for summary judgment; underlining added); (b) that the discussion of ‘Verification’ in the attachment to the notice of determination (Ex. A) describes verification only very summarily and makes no mention of the issuance or receipt of the statutory notice; and (c) that in the absence of the taxpayer’s admission of receipt, the Settlement Officer ‘must review (or attempt to review) the underlying pre-assessment documents that show that the notice was issued and was sent to the taxpayer’s last known address. This means in addition to transcripts, you should review or attempt to review the following documents, if possible: A. a copy of the SNOD and B. the certified mailing list for the SNOD to verify whether the SNOD was properly mailed to the taxpayer’s last known address.’ IRM pt. 8.22.2.2.4.7.1(4) (emphasis added)”. Order, at p. 2.

Hmmm…is Tax Court starting to check whether IRS engages in what we used to call in New York City landlord-tenant cases “sewer service”?

Stay tuned.