In Uncategorized on 09/06/2016 at 16:25

Many years ago that phrase was used to describe a Super Bowl loss, but Judge Gerber is stuck with the result in Eric L. Cox, 2016 T. C. Sum. Op. 53, filed 9/6/16. Though I remember a colleague claiming Judge Gerber was pro-IRS, he wasn’t so here.

He was confronted with “…(1) an anomalous circumstance where petitioner might have been able to successfully contest the underlying liabilities and (2) the resulting question of whether it was an abuse of respondent’s discretion not to permit him to attempt to do so.” 2016 T. C. Sum. Op. 53, at p. 5.

IRS hit Eric with TFRPs for an outfit Eric claimed he’d sold before the quarters at issue, and he showed documentary proof thereof at the Tax Court trial, but his notice of appeal from the Letter 1153 was delivered and mailed one (count it one) day late.

Letters 1153 are notices sufficient to trigger the right of appeal, and sixty days means sixty days. Eric was a day late and a lot more than dollar short. Of course, Eric can pay one quarter and sue in USDC or USCFC.

Still, says Judge Gerber “It seems curious that respondent [IRS] would not consider petitioner’s evidence because it could have saved the Government and parties time, effort, and expense if petitioner had been able to easily show that he was not liable for the TFRP liabilities.  We understand that respondent was precluded from considering petitioner’s appeal of the proposed assessment because it was untimely, but respondent is not otherwise statutorily prohibited from considering petitioner’s arguments during the CDP hearing (after an assessment has already been made). Nevertheless, this Court’s role is to review what has transpired and to decide whether there has been an abuse of discretion.  Because respondent was not required to consider petitioner’s underlying liabilities as part of the CDP hearing, respondent’s failure to do was not an abuse of discretion.” 2016 T. C. Sum. Op. 53, at pp. 6-7.

And the SO filled in all the blanks on the checklist, so no abuse of discretion.


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