Attorney-at-Law

THE SECOND TIME AROUND

In Uncategorized on 05/14/2015 at 15:27

Wilfredo A. Ruiz-Caban is singing Sammy Cahn’s and Jimmy Van Heusen’s 1960 hit with vigor, as STJ Lewis (“That Name Just Slays Me”) Carluzzo lets in Wilf’s petition after the second mailing from IRS.

Read all about it at Docket No. 20805-14, filed 5/14/15, another STJ Lew off-the-bencher, or, better still, read my blog now, as the Tax Court website will drop out at 5:00 p.m. Eastern today, for an emergency electrical fix.

Wilf’s petition is about 95 days late, if you take the first SNOD mailing as the determinative factor. Wilf was living at his current address, and claims he notified USPS of his changed address the year before, but IRS used his old address and got the mailing back undelivered.

IRS claimed Wilf never gave them the magic “clear and concise written notice.”

STJ Lew: “…he does not claim that he gave respondent clear and concise written notice of his current address before the notice was issued. Instead, petitioner argues that the change of address that he registered with the U.S. Postal Service operated to change his ‘last known address’ from his previous address to his current address. See section 301.6212-2(b) (2), 20 Proced. & Admin. Regs. Respondent argues that the record does not contain sufficient information to determine whether that regulation applies. If it does, then the notice is invalid and we lack jurisdiction on that ground. If the regulation does not apply, then the notice is valid and we lack jurisdiction because the petitioner was not filed within the period prescribed by section 6213(a), as pointed out in respondent’s motion. See Rule 13(a); Monge v. Commissioner, 93 T.C. 22, 27 (1989). Either way, we would be without jurisdiction and petitioner’s challenges to the deficiency would have to be, and could be made in a different Federal court (refund procedures) or a different proceeding in this Court (section 6330(d) proceeding).” Order, at pp. 5-6.

But Wilf is persistent; he wants to be in Tax Court, and he’ll fight to stay there.

“As it turned out, because of a contact made by petitioner to one of respondent’s service centers, a copy of the notice was mailed to petitioner at his current address… (remailed notice), and the petition could be treated as timely filed with respect to the remailed notice. See section 6213(a) and 7502. That being so, petitioner argues that the Court has jurisdiction.” Order, at5 p. 6.

Now maybe Wilf didn’t realize that, if he could prove the SNOD wasn’t mailed to his last known address, he could disregard the SNOD entirely, the SOL would run before IRS could get him a new SNOD, and he could walk away unscathed. Or maybe Wilf was concerned he couldn’t win that face-off, and by offering to stay onboard, he had a better chance of beating the SNOD.

Wilf is a self-represented, and he isn’t doing so bad.

IRS plays the usual counter-gambit. Second mailings don’t count. First in the mail is it, and there’s caselaw that says so.

Right, says STJ Lew, but in those cases no one claimed that the first mailing went to the wrong address. Here it’s not so clear that the first mailing went to the right address, namely, the “last known address.”

Anyway, why waste time?

“As noted above, resolving the dispute between the parties as to petitioner’s last known address would require the dismissal of this case on one ground or another only to have the case, in effect, resurface in a different case before us, or in a different Federal court. With that likelihood consequence in mind, proceeding in that manner makes little sense to us. Instead, we proceed, without finding, as though the notice was not sent to petitioner’s last known address, but acquire jurisdiction over the deficiency placed in dispute in the petition because the petition was timely filed in response to the remailed notice.” Order, at p. 7.

Judge, I think you meant “With that likely consequence.”

Anyway, “In closing we think it appropriate to note that proceeding in the manner we have is consistent with a liberal construction of section 6213(a) as applied in other circumstances by other Federal courts in order to preserve this Court’s jurisdiction in a case commenced under that section. See e.g. Tenzer v. Commissioner, 285 F.2d 956, 958 (0th Cir., 1960) ; Eppler v. Commissioner, 188 F.2d 95, 98 (7th Cir. 1951).” Order, at pp. 7-8.

So IRS, you lose. Wilf’s petition is timely.

Wilf gets a Taishoff “good going”, first class.

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