Well, in the words of the old Toyota commercial, “you asked for it, you got it”; I wanted some good designated hitters, and The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, Mark V. Holmes, delivers one.

And it’s a one-sentence course in standard of review out of a NOD from a CDP. See infra, as my two-yacht colleagues would say.

Mark Melfa, Docket No. 17536-11L, filed 5/9/14, sets the stage. And Mark the petitioner (hereinafter “MTP”, to distinguish him from Mark The Judge, hereinafter “MTJ”) sets the stage by doing nothing until he gets to Tax Court, whereat he claims (a) he never got the chance to contest the underlying liability, so he’s entitled to de novo review, and (b) he was entitled to a face-to-face at the CDP.

Well, MTP obviously never read my blogpost “Stipulate, Don’t Capitulate”, 9/23/11, or either of my two follow-ups, “Stipulate, Don’t Capitulate – Part Deux”, 5/24/13, and “Stipulate, Don’t Capitulate – Redivivus”, 9/19/13, because he and IRS stipulate that the administrative record is true and complete.

Of course, the admin record sinks MTP. Here’s MTJ: “Mr. Melfa now argues that he didn’t receive any notice of deficiency. His problem is that when his case was before the IRS, he not only didn’t put that argument on his Form 12153 (the official IRS CDP-hearing request form), which is an informal administrative pleading, but he never once in the administrative record as a whole asserts anything other than that “I do not recall ever receiving a statutory notice of deficiency . . . .” Letter from Mark Melfa to IRS Memphis Appeals Campus (June 10, 2011). We cannot fault the officer for not responding to an unmade argument.” Order, at p. 2 (Citation omitted).

Now we know that non-receipt of a SNOD doesn’t help for the 90-day limit on petitioning the deficiency, if same was properly and provably mailed to last-known address. But it does help on a CDP, as non-receipt is a basis for de novo review of the underlying liability. Except “(M)r. Melfa didn’t put his supposed nonreceipt into his request for a CDP hearing, didn’t attend that hearing, and didn’t even mention it in any of his correspondence with the officer who ran the hearing.” Order, at p. 3.

And he stipulated to the administrative record. Game over on that one.

That leaves face-to-face. But face-to-face isn’t required by law or regulation or the IRS Manual.

“The regulation [Sec. 301.6330-1(d)(2) A-D8, Proced. & Admin. Regs.] says that a taxpayer who challenges his underlying tax liability with irrelevant or frivolous issues doesn’t get a face-to-face hearing…; we see no error, and no abuse of discretion, in similarly denying a face-to-face hearing to someone who raises no issues about liability at all.” Order, at pp. 3-4.

The one-sentence gem in all this? Standard of review when abuse-of-discretion is in play: MTJ: “A handy shorthand for abuse-of-discretion review is that it looks for an error of law, a clearly erroneous finding of fact, or an irrational chain of reasoning.” Order, at p. 3.

How’s that for a gem? You can use it in all of your memoranda of law, free of charge.