Attorney-at-Law

INELIGIBLE RECEIVER

In Uncategorized on 09/22/2014 at 16:38

Ch J Michael B. (“Iron Mike”) Thornton puts his hand on his head, points to IRS, blows the play dead, and tosses the NODs against David Andrew Lufkin, Sr., Docket No. 28323-13L, filed 9/22/14.

Dave Sr. was an attorney, but he was out of his office when the Form 941 withholdings at issue from his law practice were being fought.

I was out of my office today, for what I suspect is a much happier occasion than Dave Sr., because a receiver had been appointed for his practice.

IRS claimed Dave Sr. was objecting to a NOD out of an equivalent hearing, because he blew the thirty-day cutoff on the original NITL, so he went for an equivalent hearing that doesn’t allow for petition to Tax Court. If you blow a NITL, you can get an equivalent hearing, but if you lose, that’s it, no ticket to Tax Court. Thus, Dave Sr. is auf’d, as they say on the runway.

After much motion practice, Dave Sr. claims he never got the NITL. If he didn’t, the NITL was a nullity, the equivalent hearing was a nullity, the levy goes down, any funds or property levied upon must be returned, and back to Square Uno for IRS.

Ch J Iron Mike explains: “This is because statutes mandate that such notices under section 6320 and 6330, I.R.C., must be given in person, left at the person’s dwelling or usual place of business, or sent by certified or registered mail to the person’s last known address. Secs. 6320(a)(2), 6330(a)(2), 6331(d)(2), I.R.C.; secs. 301.6320-1(a), 301.6330-1(a), 301.6331-2(a)(1), Proced. & Admin. Regs. ‘Last know address’ [sic], in turn, is defined as ‘the address that appears on the taxpayer’s most recently filed and properly processed Federal tax return, unless the Internal Revenue Service (IRS) is given clear and concise notification of a different address.’ Sec. 301.6212-2(a), Proced. & Admin. Regs. In absence of proper mailing to the last known address, the Court will dismiss the case for lack of jurisdiction on the ground that the underlying notice of Federal tax lien filing or the underlying final notice of intent to levy is invalid, a disposition that precludes the Commissioner from going forward with the collection action in dispute.” Order, at p. 3.

It turns out that IRS mailed the NITL to the receiver, notwithstanding that the 941s in question showed Dave Sr.’s old law office as the taxpayer’s address. And IRS couldn’t explain how they got the receiver’s address.

The receiver is an ineligible receiver. The receiver’s address is not the last known address to which Congress mandated the NITL be sent by certified or registered mail.

“Respondent therefore concedes on this issue and asks that the case, insofar as it concerns the 1998 Form 941 liabilities, be dismissed on the ground that the underlying final notice of intent to levy was invalid. Respondent further concedes that all amounts levied pursuant thereto will be refunded and assets [sic; probably “asserts”] that a final notice of intent to levy will be reissued to petitioner at his current (and at present proper last known) address of record.” Order, at p. 4.

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Footnote- The Tax Court Orders page was squirrely in the extreme today, so digging through Orders was a real job.

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