In Uncategorized on 07/15/2016 at 16:22

Dr Heisenberg, thou shouldst be living at this hour. IRS hath need of thee, as a much finer writer than I put it.

Judge Wherry, nowise whimsical today, takes up the call in a designated hitter for a July Friday afternoon, Percy Squire Co., LLC, Docket No. 4812-16L, filed 7/15/16.

PSC is allegedly on the hook for four (count ‘em, four) years’ worth of FICA-FUTA nonfilings and nonpayments, with a Section 6673 frivolity chop for lagniappe.

In the NOD from which PSC petitions, IRS claims they sent NITLs, but the NITLs aren’t in the file. The mailing dates for PSC’s two CDP requests differ from the signature dates.

While we all know that a NOD from a CDP is the key to the Tax Court door, a Section 6330(f) disqualified jeopardy employment tax levy doesn’t need a NITL, and IRS did show up with Notices CP 297A, which are the disqualified jeopardy employment tax levy notices, and the dates on those tie in to the dates in the NOD, but not to the dates when PSC sent in their petition.

Clear? Thought not, and neither does Judge Wherry.

“The Court is uncertain whether: (i) the Commissioner determined to sustain, in the notice of determination, a proposed levy or a disqualified jeopardy employment tax levy; (ii) if the Commissioner determined to sustain a proposed levy, whether he properly mailed petitioner the pre-levy notice required under section 6330(a)(1) necessary for this Court to have jurisdiction under subsection (d)(1); and (iii) whether petitioner’s collection due process request with respect to its 2010 Form 940 liability was timely. Moreover, we remind respondent that we uphold the Appeals Office’s determination only on grounds upon which the Appeals Office actually relied in the notice of determination. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); LG Kendrick, LLC v. Commissioner, 146 T.C. ___, (slip op. at 31) (Jan. 21, 2016).” Order, at p. 4.

I’ve blogged Chenery more than twice. For Kendrick, see my blogpost “Be Careful What You Ask For – Part Deux,” 1/21/16.

So, IRS, before you head for that Grey Goose Gibson up, file a supplement to your summary J motion in this case, with a lot of ‘splainin’. Produce all the paper as well. Finally, tell Judge Wherry what means “…the entries in petitioner’s Federal income tax transcripts that read ‘Module in Federal Payment Levy Program’ and ‘Module Reversed Out of Federal Payment Levy Program’.” Order, at pp. 4-5.

Gotta watch those modules.



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