Attorney-at-Law

BE CAREFUL WHAT YOU ASK FOR – PART DEUX

In Uncategorized on 01/21/2016 at 17:37

IRS wanted a remand to fill out their case against Michael E. Lunnon, and Judge Marvel gave them one. For that part of our story, see my blogpost “Chenery and the Record,” 8/12/15.

But the supplemental NOD from the remand can’t cure the problem with the first NOD. That omitted one quarter of Mike’s 941 obligations.

Judge Marvel: “Respondent contends that the Court has jurisdiction to review the NFTL filing for the [omitted] Form 941 liability because its omission from the original notices of determination was an inadvertent clerical error, petitioner ‘substantively received a hearing with respect to’ the collection action, and the supplemental notice of determination ‘simply clarifies that the hearing and determination [with respect to the liability] were embedded in the original notices of determination and hearing’. We therefore consider whether the original notices of determination confer jurisdiction over the NFTL filing for petitioner’s [omitted] Form 941 liability, and if not, whether the supplemental notice of determination cures the jurisdictional defect.” 146 T. C. 2, at p. 18.

Yes, it’s a full-dress T. C., LG Kendrick, LLC, 146 T. C. 2, filed 1/21/16.

And the answers to the considered questions Judge Marvel raise is “no and no.”

While the old truism that all Tax Court needs for Sections 6230/6330 CDP review is “a written notice that embodies a determination to proceed with the collection of the taxes in issue, and a timely filed petition,” (146 T. C. 2, at pp. 18-19, citation omitted), and typos and finger-fehler don’t disqualify a NOD if petitioner wasn’t confused or misled, this is worse.

“…the instant case is distinguishable from cases where the jurisdictional notice contained a typographical or other minor error but still revealed on its face that the Commissioner had made a determination with respect to a particular period. The tables within the original notices of determination listed all periods and collection activities for which the Appeals Office had made determinations. They did not include the NFTL filing for petitioner’s [omitted] Form 941 liability. Nothing in the remainder of the notices hints that the Appeals Office made a determination with respect to the NFTL filing for that liability. The references to the taxable period…on the first pages of the original notices of determination do not provide clarification because the notices address other collection activities with respect to that period.” 146 T. C. 2, at p. 23 (Footnote omitted, but I’ll give it to you anyway.)

“Although sec. 6320 and sec. 6330 hearings are often held jointly when the Commissioner has proposed to levy and has filed an NFTL with respect to the same taxable period, a proposed levy and an NFTL filing are distinct collection activities for which the Commissioner must make separate determinations, even if those determinations are embodied in the same notice of determination. See secs. 6320, 6321, 6330, 6331.” 146 T. C. 2, at p. 23, footnote 16.

And though IRS tries to argue some permutation of “agreed to be tried,” and claims Mike and the AO talked about this at the hearing on remand, that’s not enough.

“The fundamental purpose of a notice of determination, i.e., to notify the taxpayer of the Appeals Office’s determination to sustain a collection action for a particular taxable period, was not fulfilled. We also do not look behind the notice, as respondent urges us to do, to determine whether petitioner ‘substantively received a hearing with respect to the [omitted] Form 941 liability’. It is the Appeals Office’s written determination, not the fact that a section 6320/6330 hearing occurred, that is the basis for our jurisdiction.” 146 T. C. 2, at p. 24 (Citation omitted).

And the supplemental hearing at Appeals is just that—supplemental. It can’t put back what wasn’t there to begin with. The supplemental NOD can only deal with the original notices. Mike gets no new right of review from the supplemental NOD.

So the omitted quarter is omitted. The supplemental NOD gives Tax Court no jurisdiction over the omitted quarter. So Mike can’t contest the liability or the NFTL or the NITL therefor.

For the rest, Mike produced no evidence disputing what periods were properly in review, the AO had new evidence about those periods that Mike got to see, so Mike gets no chance to contest those now.

Once again, the same takeaway. Be careful when you ask for a remand.

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: