In Uncategorized on 10/24/2016 at 18:37

I am using that term in more than one sense. Samuel D. Kelker, Docket No. 15061-14L, filed 10/24/16, claims Tax Court should act like an appellate court when it reviews CDPs from Appeals, and therefore should follow Fifth Circuit rules (Sam apparently is Golsenized to Fifth Circuit).

So we get this designated hitter from The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Irrefragable, Ineluctable, Indefatigable, Impeccable, Illustrious, and Incontrovertible Foe of the Partitive Genitive, and Old China Hand, Judge Mark. V. Holmes.

Sam’s Fifth Circuitry is short-circuited.

“This is just wrong. Section 6330(d)(1) gives us jurisdiction to review the IRS’s notices of determination that sustain its decisions to collect tax debts like Kelker’s through levies. Section 7453 gives us the authority to conduct cases in accord with rules of our own devising, and we have chosen to do so with our Rules of Practice and Procedure.” Order, at p. 1.

But Sam isn’t entirely wrong.

“Kelker is a little bit right that our function in CDP cases is largely an appellate one. Our job is to review the record that the IRS compiled in reaching its decision to try to collect Kelker’s taxes by levy. Sometimes a trial is necessary to figure out whether that record is complete or defective in some way, but in this case neither Kelker nor the IRS has identified any issue that needs to be tried. To get the record before us, the IRS usually (as it did here) attaches it to an affidavit of the IRS employee who conducted the CDP hearing. The IRS and the taxpayer can then move for summary judgment — and much like arguing in briefs to a circuit court — can argue in the form of motion papers that the IRS’s conclusion was correct or incorrect on that record.” Order, at p. 2.

There’s some argy-bargy about whether Sam got the SNOD when he didn’t pay the SFR, but Sam caved at the CDP, didn’t propose an collection alternatives, and just groused about underlying liability.

So Sam’s demand for a face-to-face and a trial are short-circuited by summary J.

I post this order to show the inventiveness of petitioners. Never a dull moment at 400 Second Street, NW.

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