Well, maybe counsel sneakier than I could, or even better, a top-fuel unmodified Class-A rounder. And get a full-dress T. C. out of it. Take a quick peek at Charles J. Weiss, 147 T. C. 6, filed 8/17/16.

For Chas’ rounderhood qualifications, see 147 T. C. 6, at p. 4, footnote 2.

Chas got a NITL for his six-year dodging, aggregating better than $550K.

Chas plays a stormer. “R [IRS] attempted to hand-deliver the levy notice during a field call on February 11 but was deterred by P’s [Chas’] dog.  Two days later R initiated the mailing of the levy notice by certified mail to P’s last known address.  R did not generate a new levy notice dated February 13; he enclosed in the envelope the original levy notice dated February 11.  P received the levy notice on February 17.  P completed Form 12153 requesting a collection due process (CDP) hearing for the tax years at issue and mailed it to R on either March 13 or 14.  R received it on March 16, which was a Monday.” 147 T. C. 6, at p. 1.

Note the dates. They are critical.

Chas claims he intentionally mailed the Form 12153 requesting a CDP one day late, viz., beyond the thirty-day cutoff, so he only should get an equivalent hearing, not a CDP. And that doesn’t stay collection while he’s being equivalented, nor does equivalenting stay the SOL on collections, so IRS is SOL.

“Respondent [IRS] contends that petitioner’s request for a CDP hearing was in fact timely because it was filed within 30 days of the date on which the IRS mailed him the notice of levy.  See sec. 6330(a)(3)(B).  Respondent acknowledges that the date appearing on the levy notice was at least two days earlier than the mailing date but argues that the mailing date dictates the start of the 30-day period where (as here) it is the later of the two dates.  Cf. Bongam v. Commissioner, 146 T.C. __, __ (slip op. at 11-12) (Feb. 11, 2016).  On this point we agree with respondent. Because petitioner has raised no other meaningful challenge to the settlement officer’s determination, we will sustain the proposed collection action.” 147 T. C. 6, at pp. 3-4.

Chas never did anything on the CDP, nor did his attorney (whom I’ll refer to hereinafter as “DP”), so the SO gave Chas the NOD.

For the story of Isaiah Bongam above-cited, see my blogpost “Getting the Nod,” 2/11/16.

If the SOL did run, then review for abuse or de novo doesn’t matter.

Asking for a CDP is enough to stay both SOL and collection, even if CDP is denied.

“’A taxpayer who fails to make a timely request for a CDP hearing is not entitled to a CDP hearing,’ but he may be afforded an ‘equivalent hearing.’  Sec. 301.6330-1(i)(1), Proced. & Admin. Regs.  Any relief afforded in an equivalent hearing is discretionary with the IRS; the ‘decision letter’ issued after such a hearing is not subject to judicial review.  Id. para. (i)(2), Q&A-16.  The collection period of limitations is not suspended during an equivalent hearing, and the IRS may thus proceed to collect the taxpayer’s liabilities.” 147 T. C. 6, at p. 16 (Citations omitted).

But no one has yet raised the question of the intentionally late Form 12153. I want to give Chas and DP (both of them attorneys, BTW) a Taishoff “Good Try, Hors Classe.”

“Although we have found no precedent that addresses the precise question involved here, a modest body of case law has developed on closely analogous questions.  When considering the timeliness of notices of deficiency under section 6213, we have encountered situations where the date on the notice did not match the date on which the notice was successfully mailed to the taxpayer.  Where the date on the notice was earlier than the date of mailing, we have held that ‘[t]he critical date is the date the deficiency notice was ‘mailed.’” 147 T. C. 6, at pp. 18-19 (Citations omitted).

But Judge Lauber leans heavily on Bongam above-cited. And that means the date of mailing, not the date of the NITL, controls.

“In so ruling, we are guided by the proposition that, in determining whether we have jurisdiction over a given matter, this Court and the Courts of Appeals have given our jurisdictional provisions a broad, practical construction rather than a narrow, technical one.  Acceptance of petitioner’s submission would disserve the interests of most taxpayers by converting the CDP hearing, in the scenario presented here, into an ‘equivalent hearing’ immune from judicial review.  When a statutory provision is capable of two interpretations, ‘we are inclined to adopt a construction which will permit us to retain jurisdiction without doing violence to the statutory language.’  Traxler v. Commissioner, 61 T.C. 97, 100 (1973).” 147 T. C. 6, at p. 21. (Footnote omitted).

Finally, DP tries to claim that the date of the notice is the same thing as the date on the notice, but Judge Lauber decries that as the Regs speak of mailing, whatever the date may be on whatever is in the letter.

IRS can’t prove the exact mailing date of the NITL, but here it doesn’t matter, because “the second month alone” had only 28 days that year, and the Form 12153 was stamped in by the flailing date-stampers at 400 Second Street, NW, on the morning of Day Thirty. So whenever the NITL was mailed, the Form 12153 got there on time.

DP and Chas don’t quit. They claim the NITL flunked the “simple and nontechnical language” provision of Section 6330(a)(3). But even if it does (a) there’s no statutory penalty for that, (b) the SO isn’t required to determine if the NITL is simple and nontechnical, and (c) even if the SO didn’t so find, Chas still sent in a Form 12153 and got his CDP. No hurt, no foul.

Though the IRM states the NITL must be mailed the same day as dated, that hasn’t the force of law or regulation.

Chas claims he was misled by IRS. Chas is an attorney. Estoppel against IRS is applied very sparingly.

As for prejudice, Mrs Chas threw away the envelope in which the NITL came. We attorneys know you never throw away envelopes; they can be invaluable evidence. Anyway, “Petitioner is an attorney; he studied the IRS publications he received; and he understood the difference between a CDP hearing and an ‘equivalent hearing.’  His testimony that he actually sought an ‘equivalent hearing’ was implausible for at least four reasons: (1) he did not check the box for ‘Equivalent Hearing’ despite two opportunities to do so; (2) the IRS during the pendency of an ‘equivalent hearing’ could begin immediate collection action, which was the last thing petitioner wanted; (3) any relief afforded by the IRS in an ‘equivalent hearing’ would be purely discretionary and not subject to judicial review; and (4) the CDP hearing that he requested would entitle him to judicial review and defer IRS collection action indefinitely, thus achieving the goals he expressed in his hearing request.  For all these reasons, we find no credible evidence to support his claim of prejudice.” 2016 T. C. 6, at p. 30.

Chas and DP go down swinging for the fences.

Ya really can’t make this stuff up.