Attorney-at-Law

1040 GAMBIT – DECLINED

In Uncategorized on 05/04/2016 at 22:43

IRS, generous as always, prepared SFRs for two years when, they allege, Robert W. Schlegel, 2016 T. C. Memo. 90, filed 5/4/16, didn’t bother to file returns, much less pay tax asserted to be due. IRS also claims that, again at no extra charge, they mailed SNODs to RW’s last known address, which RW doesn’t dispute was his last known address, but says he never got the SNODs and wants to contest liability in a face-to-face CDP.

Which he could do, says Judge Pugh, if indeed he never had a chance to dispute before. And IRS’s proofs of mailing have some holes.

Though IRS has a PS3877 proof of mailing form, RW claims it doesn’t reach the standard for presumption of regularity. It doesn’t state the number of items tendered by IRS to USPS, nor is it signed or initialed by the IRS employees who issued the SNODs.

RW got it right. The PS3877 doesn’t raise the presumption. But IRS has more.

“While not sufficient to create a presumption of official regularity, the incomplete certified mailing list serves as evidence that the notices of deficiency were mailed to petitioner. The certified mailing list bears a U.S. Postal Service date stamp and signature. Also, both entries show petitioner’s name, his address, and the certified mail article number of the corresponding notice of deficiency. Petitioner has not argued that the address on the certified mailing list was not his last known address, and the address on the certified mailing list is the same address that petitioner reported on his administrative hearing request and on his petition filed with this Court.

“Furthermore, Appeals did not rely solely on the certified mailing list to verify that the notices of deficiency had been mailed to petitioner. Appeals also reviewed the copies of the notices of deficiency for the years at issue, and each notice of deficiency bears the same mailing date, mailing address, and certified mail article number as the corresponding entry on the certified mailing list. In addition, SO X reviewed the tracking information for each piece of mail corresponding to the certified mail article numbers on the notices of deficiency and verified that those articles of mail were reported as being delivered.” 2016 T. C. Memo. 90, at pp. 11-12. (Citations and name omitted).

Besides, RW had a chance to submit his own 1040s to rebut the statements on the SFRs. SO X sent RW a letter, which he did receive, asking for the usual Form 433-A, and asking RW to send in the 1040s for what he claims he owes.

RW never did, so IRS was right to decline the face-to-face CDP, as RW had no other argument and declined the 1040 gambit.

Takeaway– Before declining the 1040 gambit, think twice.

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