Attorney-at-Law

“LET’S YOU AND HIM FIGHT” – PART DEUX

In Uncategorized on 09/06/2016 at 15:38

But Not Here

Ex-Ch J Michael B (“Iron Mike”) Thornton welcomes us back from the three-day end-of-summer layoff with Elliot Herskowitz, Docket No. 21233-15L, filed 9/6/16. And no, he didn’t designate it. Apparently ex-Ch J Iron Mike feels I should work harder.

IRS liened on Elliot for some back taxes. Elliot told Appeals “…he has a ‘history of making excessive estimated payments, the liability…should be reversed, or, at a minimum, the interest and penalties should be reversed.’” Order, at p. 1.

He had a phone-a-thon CDP, and the liens got sustained.

Then IRS grabbed the “excessive payment” Elliot made for a subsequent tax year, applied it to the liabilities that gave rise to the NFTLs plus penalties, and gave Elliot a NOD.

The NOD said, “nothing due, no further action.”

Elliot petitions. “The sole assignment of error in the petition was: ‘Due to exigent circumstances the penalties and interest should be waived.’” Order, at p. 2.

Of course waiving interest is a nonstarter.

IRS answers: “(1) this case is moot because there remains no unpaid Federal income tax liabilities for the years at issue and the liens underlying the NFTLs have been released; and (2) the Court lacks jurisdiction to determine an overpayment or to order a refund or credit of taxes.” Order, at p. 2.

Elliot comes to the point. IRS consented to jurisdiction when they issued the NOD, which says I should go to Tax Court timely, which I did. Oh, and check out my prior liabilities and the penalties.

Ex-Ch J Iron Mike: “The Tax Court is a court of limited jurisdiction; we may exercise jurisdiction only to the extent expressly provided by statute, see, e.g., Henry Randolph Consulting v. Commissioner, 112 T.C. 1, 4 (1999), and the parties’ consent does not confer on this Court’s [sic] jurisdiction not otherwise so provided. High Adventure Ministries, Inc. v. Commissioner, 80 T.C. 292, 297 (1983).” Order, at p 2.

Judge, didn’t you mean “the parties’ consent does not confer on this Court jurisdiction not otherwise so provided”?

Howbeit, from a CDP all Tax Court can do is sustain or deny the lien or levy. If there is neither lien nor levy, game over at 400 Second Street, NW. And all of IRS’ piety and wit don’t mean a thing.

“Whatever other advice or instructions respondent might have given petitioner does not make it otherwise. If petitioner seeks a refund or overpayment credit, then any legal remedy would lie in the United States District Court or the United States Court of Federal Claims rather than in this Court.” Order, at p. 3.

And the offset per Section 6402 is not a levy per Section 6330. See my blogpost “An Offset Isn’t a Levy,” 2/21/12.

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