Attorney-at-Law

POWERLESS – REDIVIVUS

In Uncategorized on 03/24/2015 at 17:45

Despite two T. C. Memos dealing with unreported income today, I’m blogging about powers of attorney (POAs), as the principle there is of greater general application than another bank deposits reconstruction or a diversion of funds that falls short of absolute fraud.

The people I’m writing for are more likely to see the Form 2848 in peace and war.

So we have the designated hitter, Merlene Godfrey, Docket No. 21507-13L, filed 3/24/15, from STJ Daniel A. (“Yuda”) Guy.

Merlene claims IRS never sent her an NITL so she couldn’t challenge IRS’s determination at Appeals, so no jurisdiction. IRS agrees no jurisdiction, but they did send an NITL to Merlene. However, Merlene’s AIF (attorney in fact; that’s the person authorized by as power of attorney to act for the principal. A power of attorney is a piece of paper, not a person) petitioned a year too late.

Here’s the chronology: “In September 2011, Tax Defense Network (TDN) submitted to the IRS two Forms 8821, Tax Information Authorization, executed by petitioner, identifying TDN as her representative for the years in issue. In early March 2012, the IRS received from petitioner a Form 2848, Power of Attomey and Declaration of Representative, appointing John J. Genova, petitioner’s counsel of record in this case, as her attorney in fact for the years in issue. Petitioner did not check the box on the Form 2848 directing respondent to send copies of notices and communications to Mr. Genova. Thereafter, petitioner received correspondence from the IRS which she then forwarded to Mr. Genova. Realizing that the Form 2848 did not direct respondent to send copies of notices and communications to him, Mr. Genova checked the ‘notice’ box on the original Form 2848 and sent a copy of it by facsimile transmission to the IRS on May 19, 2012.” Order, at p. 1 (Footnote omitted, but read it; Merlene didn’t re-sign the Form 2848 after Mr G checked the box, so IRS claims it’s ineffective).

A month later, Mr G got Merlene to sign the revised Form 2848, but IRS had mailed the NITL three days earlier to Merlene and TDN per the Forms 8821 on file, but not to Mr G.

Merlene never picked up the NITL, and it was returned “unclaimed” to IRS.

A year later, Mr G discovers what happened and filed Form 11253, which IRS bounces as too late, so Mr G petitions.

But everyone agrees there’s no jurisdiction in Tax Court. The only question is, why not?

“The only issue for decision is the proper basis for dismissal (i.e., the lack of a notice of determination (as respondent contends) or the lack of a valid levy notice (as petitioner contends).” Order, at p. 2.

Of course, if no valid NITL, then no lien. If valid NITL but no NOD, too bad, lien stands.

Bad news, Merlene (and you taxpayer representatives, read and heed).

“The record shows that respondent mailed the levy notice for the years in issue to petitioner’s last known address by certified mail. Petitioner failed to claim the notice, and it was returned to the IRS undelivered. The fact that petitioner did not actually receive the levy notice does not render the notice invalid. Petitioner nevertheless contends that the levy notice is invalid because respondent failed to mail a copy to Mr. Genova. Respondent asserts that the Form 2848 appointing Mr. Genova as petitioner’s representative was ineffective to revoke or override the Form 8821 that petitioner previously submitted to the IRS appointing TDN as her representative. As respondent sees it, he properly mailed copies of the levy notice to petitioner (at her last known address) and to TDN. We agree.” Order, at pp. 2-3.

Relying on deficiency cases rather than lien or levy, STJ Yuda says “It is established law that ‘the failure of the respondent to send a copy of the notice of deficiency to the taxpayer’s counsel, pursuant to a request contained in a power of attorney filed with the respondent, does not affect the time within which the taxpayer must file a petition with this Court if a notice of deficiency has been sent to the taxpayer by * * [certified] mail to his last known address.’” Order, at p. 3. (Citations omitted).

So whether the amended POA was valid or not, “Regardless of whether Mr. Genova should have received copies of IRS correspondence, respondent mailed the levy notice to petitioner at her last known address. Respondent therefore met the mailing requirements under section 6330, and the levy notice is valid. No notice of determination sufficient to confer jurisdiction upon this Court has been issued to petitioner.” Order, at p. 3.

So there’s no NOD, because the petition was way too late, and thus there’s no Tax Court jurisdiction, but the lien stands.

But what if Merlene checked the box on the Form 2848 to Mr G to begin with?

Maybe the same result, but try it.

Takeaway–Double check those POAs before you fax them to CAF.

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