I guess I’m getting old. I began a couple of recent blogposts with recollections of events sixty years ago. So I’d better bring the recollections closer to modern times.

OK,  around forty-five years ago, I was discussing a judicial decision (not involving tax) with a very senior member of our profession (he was admitted to practice the year before I was born). The decision interpreted a statutory provision that employed the word “all.”

I pointed this out, to which the gentleman remarked, “What a novel concept. All means all.”

Well, today we have a full-dress T. C. from Judge Wells, John Chase Lee, 144 T. C. 3, filed 1/21/15. And “any” means “any.”

At his CDP, JC didn’t raise nonreceipt of the Letter 1153 that triggered his right to object to the TFRPs, which IRS seeks to take out of his hide.

IRS says “game over, can’t contest liability, summary J for IRS.”

Not so fast, says Judge Wells.

“In reaching our decision, we must decide whether the requirements of any applicable law and administrative procedure have been met.” 144 T. C. 3, at p. 3.

IRS claims JC was personally served by the RO at a meeting with JC on March 30 (they never claimed mailing to last known address). But “(T)he Integrated Collection System History Transcript (ICS Transcript) that respondent submitted with the declaration shows a March 30… entry which does not refer to the Letter 1153. Instead, an entry on March 31… the day after the meeting, states: ‘In addition to GM entry above * * * both Bains and [JC] were personally served 1153’. 144 T. C. 3, at p. 5.

JC never petitioned the Letter 1153. He did petition the NOD from Appeals.

There is no SNOD for TFRPs; the Letter 1153 serves that function. If you want to fight liability (whether in whole or in part), you must petition from the Letter 1153.

If you didn’t, your only out is Section 6330(c)(2)(B), namely, viz., and to wit, that you were never served with the Letter 1153. That IRS issued the Letter 1153 is all very well, but though necessary, is not sufficient. You must have gotten it, or refused it, or failed to tell IRS when they mailed it where you were if you moved from your last known address.

See my blogpost “You Didn’t Get It – Part Deux”, 5/31/13, for the difference between assessing TFRPs and having the opportunity to contest liability.

At the CDP, the SO must verify that any and all requirements of law and administrative regulations have been met. And that is so whether or not the appellant raises any at the CDP.

The prohibition on raising issues related to the imposition itself applies only to the tax (or TFRP), not the notice (the Letter 1153). No notice, no opportunity to contest.

Judge Wells explains the difference between tax issues (Section 6630(c)(2)) and verification issues (Section 6330(c)(1)).

“Section 6330(c)(2) issues such as spousal defenses or collection alternatives cannot be a part of the Appeals officer’s determination unless raised by the taxpayer…. The concern… is that litigating new issues in Court without any prior consideration by the Service would frustrate the administrative review process created by section 6330…. In contrast, the section 6330(c)(1) verification requirements will always form part of the determination because the statute requires their consideration at the hearing regardless of whether the taxpayer raises the issue…. Because section 6330 requires Appeals officers to independently consider section 6330(c)(1) issues at the hearing, they are not ‘new’ when asserted in Court and there is no danger of frustrating the administrative review process.” 144 T. C. 3, at pp. 16-17. (Citations omitted).

This is summary J, so JC needn’t put in evidence admissible on a trial; he need only state facts that, if he can prove them with proper evidence, creates a material issue.

And he does. He says he always replies to IRS billets doux and there’s evidence of this, and he claims he had nothing to do with payroll or any of that.

IRS doesn’t produce a copy of the signed Letter 1153. IRS doesn’t produce an affidavit from the RO who allegedly served JC with the Letter 1153 on March 30. The TCS transcript says nothing about serving the Letter 1153 on March 30, only adding it as an afterthought the next day.

Not good enough.

When it comes to proper issuance and service of a Letter 1153, “any” means “any”. Whether or not the appellant raises it.

Takeaway for IRS- Admission of service or affidavit of service would help, and better still is hand-and-mail.