Attorney-at-Law

NO SECOND CHANCES – NOT QUITE

In Uncategorized on 02/09/2015 at 22:28

If you read my blogpost “No Second Chances”, 8/12/13, you might well conclude that if you miss the magic dates (90 days or 150 days from a SNOD, 30 days for a NIFL or NITL), you lost you chance to fight the liability, lien or levy.

Well, not quite. Case in point: Tiffany Wei Ding, 2015 T. C. Memo. 20, filed 2/9/15, Judge Lauber.

Tiff was back in China helping some relatives when her late-filed returns for the years at issue were being audited, and her CPA and POA were up against it. IRS banged Tiff hard. Tiff was still somewhere across the sea when the SNOD went to her home address (last known), but she wasn’t there and neither CPA nor POA got a copy.

No petition, so IRS sent a NFTL to the PO Box maintained by POA, who calls CPA, who seeks CDP, and gets it.

At the CDP, CPA and POA claim that they can show material reduction in tax, which they couldn’t show before because they hadn’t Tiff’s papers. SO can’t find the SNOD in the file, only a Letter 950 giving Tiff the right to appeal from the audit adjustments. When asked why no appeal from audit adjustments, POA said never got the Letter 950.

So the SO handed off to an AO, who reduced the whack that Tiff got by 46% but stood firm on the late-filing and late-paying penalties.

There followed a joust over collection alternatives. Tiff wanted installment, but Appeals said she had real estate and should sell, and issued NOD.

Tiff petitions, wanting to fight over capital gains, self-employment and the penalties.

IRS finds the SNOD and the PS3877 showing due mailing to Tiff’s last known address, and therefore seeks summary J.

No, this is not another Chenery go-round, although it could be. Judge Lauber has the Section 6330(c)(2)(b) out. To contest liability at a CDP, taxpayer must have received the SNOD. Mailing is not sufficient, unlike starting the clock for petitioning a SNOD.

Besides,  Reg. Sec. 301.6320-1(e)(3), Q-E11 provides that an AO can, if they want, consider liability even if the taxpayer got the SNOD and didn’t petition. But if the AO makes any change in liability, that isn’t part of the NOD and can’t be petitioned.

And by considering liability, the AO waives nothing. The consideration doesn’t open the door to a fresh view of liability in Tax Court.

But the issue whether or not Tiff got the SNOD is still open. So maybe everything is open. So no summary J.

 

 

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