In Uncategorized on 03/03/2016 at 17:42

If the above makes any sense to you, my heartfelt condolences. But it lets Hampton Software Development, LLC, 2016 T. C. Memo. 38, filed 3/3/16, dodge summary J.

Hampton had a maintenance dude for its real estate they claimed was an IC, and dealt with as such, but IRS claims was an EE. IRS hit Hamp with a Letter 950-D thirty-day letter, stating Hamp can have a preassessment rendezvous with Appeals to sort this out.

Hamp takes the preassessment appeal, tries to square away the beef, but can’t. Appeals sends Letter 3523, NDWC (Notice of Determination of Worker Appeal), but apparently same is returned to sender, unclaimed. Of course Hamp never petitions the NDWC.

The case comes up on a CDP where Hamp wants to fight the NDWC, but IRS says “no, you had your chance and you blew it.”

The exceptionally canny among my readers (of whom I am sure are many) can see IRS has a wee problem.

First, was the preassessment thingy a prior opportunity to dispute? Not if the NDWC is subject to deficiency procedure, and Judge Paris says it is.

“Pursuant to section 7436(d)(1), the principles of subsections (a), (b), (c), (d), and (f) of section 6213, section 6214(a), and section 6215, among other provisions, apply in the same manner as if an NDWC were a notice of deficiency. Sections 6213, 6214, and 6215 are all part of subtitle F, chapter 63, subchapter B of the Code. Subtitle F, chapter 63, subchapter B of the Code includes ‘Deficiency Procedures in the Case of Income, Estate, Gift, and Certain Excise Taxes’. Thus, under section 7436(d)(1), an NDWC is generally subject to deficiency procedures.” 2016 T. C. Memo. 38, at pp. 13-14. (Footnote omitted; emphasis by the Court).

That means the equivalent of a SNOD. A NDWC is a SNOD, but for CDP purposes we know that the petitioner has to receive the NDWC, not merely that IRS mailed to last known address. Unless, of course, petitioner willfully failed to pick up its mail.

But IRS can’t claim that. All they can show is they mailed the NDWC and it got returned as aforesaid.

No actual receipt, no summary J. Now a trial to prove whether Hamp deliberately ducked the NDWC.



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