In Uncategorized on 06/05/2017 at 16:11

IRS needs to do some updating of its forms and letters. Both Judge Ashford and that Obliging Jurist Judge David Gustafson agree.

But Judge Ashford goes first, as she has a full-dress T. C., David T. Myers, 148 T. C. 20, filed 6/5/17. Dave is reprising the Incomparable Comparinis, as to whose epistolary interlocutions see my blogpost “Contra Proferentem,” 10/2/14, wherein I suggested what verbiage the Ogden Sunseteers should insert in their shoot-down billets doux to start the petitioning clock on the wannabe blowers.

Of course they didn’t. So Dave and the OS volleyed missives back and forth over five (count ‘em, five) years. At the fourth year in the chain, OS sent Dave the “we got no money” brush-off. This they claim was the final determination.

Dave kept volleying through year four until, disgusted with OS, he e-mailed other governmental officials into year five, admitting he had a letter from OS saying “no repeat no” at year four. And he got no other letters.

It took Dave 290 days to file a petition. Well, this is a thirty-day rule situation.

Judge Ashford borrows from deficiency learning. While Dave could petition from any of the OS letters, cf. Comparini, he had notice and a reasonable time to file after the last one in year four.

Although OS didn’t send any letters by certified mail, in contravention of the then-IRM provision, the IRM gives Dave no rights, and anyway he got the letters in time to petition.

As for the updating, “…the Whistleblower Office typically does not include in such letters any information regarding a claimant’s right to appeal to this Court or the timeframe in which he must do so.” 148 T. C. 20, at p. 11 (Footnote omitted, but see infra, as my expensive colleagues say).

But the OS apparently got the hint. Here’s the footnote.

“Indeed, the consistent lack of this information in such letters not only is inconsistent with respondent’s practice in many other areas where our jurisdiction is implicated (in particular, deficiency cases, cases involving relief from joint and several liability, and lien/levy cases), but also, we believe, can be prejudicial to claimants–especially because there are only 30 days to appeal–and the cause of much unnecessary confusion and consternation in our adjudication of such cases. Respondent apparently agrees, as the IRM was modified, effective August 7, 2015, to direct that the Whistleblower Office include such information in the final determination letters that it issues to claimants.  See IRM pt. (Aug. 7, 2015).” 148 T. C. 20, at p. 11, footnote 6.

Of course, putting it in the IRM doesn’t help the blowers if the OS don’t bother updating their letters.

And now for that Obliging Jurist Judge David Gustafson, who will join me in suggesting appropriate revisions to another IRS missive, the one-size-fits-both CDP NOD.

Here’s Douglas Stauffer Bell & Nancy Clark Bell, Docket No. 1973-10L, filed 6/5/17. Doug & Nancy are befuddled. They petition a NOD as to levies, but don’t petition one as to liens. So even Obliging Judge Gustafson can’t review the liens. No petition in thirty days, no review.

But it’s not like pro sese Doug & Nancy were negligent.

“We have sympathy for the petitioners’ probable confusion about whether they needed to file another petition (or amend their existing petition) to obtain judicial review of the notice of determination concerning the liens. Where a taxpayer is receiving multiple forms of communication from the IRS about both liens and levies, concerning multiple liabilities for multiple periods, the opportunities for confusion over oversight are obvious. The IRS’s all-purpose form for giving notice of determination for both liens and levies (‘Notice of Determination Concerning Collection Action(s) Under Section(s) 6320 and/or 6330’) is not helpful in such a situation. Sometimes the form denotes a lien determination, sometimes a levy determination, and sometimes both. The front page gives no indication; one must read and understand the summary on the second page or the attachment, in order to know whether it is for lien or levy or both. If a taxpayer has been dealing with IRS Appeals about both liens and levies, the taxpayer may assume wrongly that the notice addresses all of his pending issues and that a timely petition will bring all those issues before the Tax Court. We assume it is not our place in a CDP case to stand in judgment of the IRS’s forms, but we believe that the this [sic] form could be improved.” Order, at pp. 1-2.

Judge Gustafson, it may not be the Court’s place, but we bloggers stand (or sit) and type in judgment about all kinds of delictions, misadventures and misdirections, whether on the part of government, litigants, advocates, clerks or whomever. And we are nowise loath to sound the trumpet, summon the elders, and proclaim a solemn assembly, to paraphrase a much more exalted commentator.

See my blogpost “Fake Out,” 12/16/14. And let’s have another Judicial Conference, as Congress ordered two years ago. Maybe we can talk all this over.

PS- IRS and Doug & Nancy will agree to a remand to Appeals, so Doug & Nancy get a supplemental CDP, from which they can petition, but only as to what the supplemental CDP covers.

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