That’s what every taxpayer is entitled to in Appeals, a new look from an impartial AO, that is, one who took no part in any prior activity with the taxpayer.

But that isn’t what Patricia A. Moosally got, when AO S, who had previously bounced her OIC, got assigned her CDP off a Letter 3172 and a NFTL.

Judge Wells gives IRS the bad news: Patty Moo gets to go back to Appeals, with a fresh looker checking out her CDP. The case is Patricia A. Moosally, 142 T. C. 10, filed 3/27/14.

Patty Moo is fighting over TFRPs, and some unpaid personal income taxes. She admits she owes them, but claims she lost her job and can’t pay.

AO S started reviewing Patty Moo’s OIC before she lost her job, bucked it to COIC who said she could pay, and bounced the OIC without issuing a NOD. Meanwhile, IRS issued a NFTL and Letter 3172, from which Patty Moo appealed. This appeal got handed to AO K, but when the computer discovered at AO S had the OIC, the file got handed to her.

AO S upholds the lien, and Patty Moo petitions Tax Court.

Judge Wells on the basics: “If a taxpayer requests a hearing in response to an NFTL pursuant to section 6320, a hearing must be conducted by an impartial officer or employee of the Appeals Office. Sec. 6320(b)(1), (3). An impartial officer or employee is one who has had no prior involvement with respect to the unpaid tax specified in section 6320(a)(3)(A) before the first hearing under section 6320 or section 6330.” 142 T. C. 10, at p. 8. (Footnote omitted).

What is “prior involvement”? Judge Wells: “Sec. 301.6320-1(d)(2), A-D4, Proced. & Admin. Regs., also provides that ‘[p]rior involvement exists only when the taxpayer, the tax and the tax period at issue in the CDP hearing also were at issue in the prior non-CDP matter, and the Appeals officer or employee actually participated in the prior matter.’ We note, however, that at least one Federal court has stated that the provision is invalid. See Cox v. Commissioner, 514 F.3d 1119, 1127 n.10 (10th Cir. 2008), rev’g 126 T.C. 237 (2006). We also note that the provision does not affect the instant case, which, as we explain below, involves a taxpayer, tax, and tax periods that were at issue in both the CDP hearing and a prior non-CDP proceeding and an Appeals officer that participated in both matters.” 142 T. C. 10, at p. 9, footnote 4.

But though the Cox case is distinguishable from this case, that doesn’t help IRS. The Cox case AO’s involvement was “peripheral”, but here it was spot-on. And AO bias isn’t the issue; friendly or unfriendly, the AO cannot have been in on the prior doings, whether or not a NOD was issued.

And even though it might be easier to let the same AO consider both the OIC and the NFTL, thus letting Tax Court consider both, that isn’t what Section 6330(c)(2)(A)(iii) says. And Tax Court’s jurisdiction is strictly limited. Judge Wells cannot rewrite the law, however convenient it might be. The only way to consider a bounced OIC is off a NOD, and AO S never issued one for that, only for the NFTL.

Patty Moo goes back to Appeals and a fresh AO, who has never laid eyes on Patty Moo or her case.