Attorney-at-Law

GETTING THE NOD

In Uncategorized on 02/11/2016 at 17:25

No, this is not about political endorsements. My political views are expressed elsewhere. This little excursus deals with receiving a NOD from a CDP, and when to petition therefrom.

This is the story of Isaiah Bongam, 146 T. C. 4, filed 2/11/16, and the gaps in the IRC that escalate Isaiah from humble petitioner to star of a full-dress T. C.

Isaiah’s last known address was always in Bowie, MD. It was there that the NFTL arrived, Isaiah asked for a CDP but put a DC address on his request. He got the CDP, but the NOD bounced him.

Then the NOD itself bounced, as the NOD sent to the DC address was returned as undeliverable. Back went the NOD to IRS in Memphis, which in turn remailed the NOD to Bowie, MD, where it arrived without prejudicial delay, and in time for Isaiah to petition timely, which he claims he did.

Isaiah claims he lived in DC at his daughter’s house, but for tax purposes he always used Bowie, MD.

Now Isaiah didn’t petition within the magic thirty (30) days from the date set forth in the NOD, but he did within the thirty (30) days he both received the remailed NOD and the date Memphis remailed it to him.

IRS claims that’s not good enough. The NOD wasn’t mailed to Isaiah’s last known address to begin with.

Now while the IRC provides specific means for sending a NFTL, all it says about what happens after a CDP is that Appeals must make a determination. The IRC says nothing about a written determination; perhaps a heliograph or smoke signal might work, but that’s not this case.

The caselaw says that the same means for sending a SNOD in a deficiency case should do for a NOD from a CDP. And the last-known-address rule is a safe harbor for IRS, whether or not the addressee actually receives the SNOD.

“However, a notice of deficiency need not be sent to the taxpayer’s last known address in order to be valid. Rather, the notice will be valid if it is actually received by the taxpayer ‘without prejudicial delay,’ that is, generally in time to file a timely petition in this Court. Actual notice from the IRS to a taxpayer, whether transmitted by certified mail, ordinary mail, or hand delivery, will suffice…

“Section 6330(d) does not require that the Commissioner send a notice of determination by certified mail to the taxpayer’s last known address or that he deliver it in any particular way. In this respect, section 6330(d)(1) stands in sharp contrast to sections 6320(a) and 6330(a), which specify three permissible modes of notifying the taxpayer of liens and levies, and other Code provisions that mandate mailing to the taxpayer’s ‘last known address. ‘  If Congress had intended that a similar restriction would govern our review of CDP cases, Congress could easily have so specified. Instead, section 6330(d)(1) provides that this Court shall have jurisdiction if a taxpayer files a petition ‘within 30 days of a determination.’ This language does not limit the manner in which the IRS may notify the taxpayer that a determination has been made.” 146 T. C. 4, at pp.8-9. (Citations omitted).

Yes, IRS, the first mailing was defective. But the remailing gave Isaiah enough time to send in a timely petition, both from the date of remailing and the date Isaiah received the remailed NOD.

The date on the NOD doesn’t control; the mailing date does. There’s no reason to stray from the SNOD rules, or the innocent spouse rules or the whistleblower rules.

So Isaiah is in.

And if you wonder why IRS wants to oust Tax Court of jurisdiction, so do I. Maybe it’s the $772K in TFRPs that Isaiah is fighting about.

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