I’ve made my political comments on today’s events elsewhere, so I’ll turn to a designated hitter off the bat of that Obliging Jurist and puzzlemaster Judge David Gustafson. Today Judge David Gustafson is confronting IRS looking for mootness in ASG Services, LLC, Docket No. 14945-16L, filed 7/25/17.

It’s a CDP, and ASG paid up, so why not just toss the petition?

Well, ASG wants to fight about liability. You remember it was only yesterday that Dean Matty Vigon sent that hare through the thicket; well, if you don’t remember, see my blogpost “Crafty – Akin to the Weasel,” 7/24/17.

But ASG isn’t quite in Dean Matty’s mukluks. So Judge Gustafson, always a man for a bargain, poses three questions, rather than the customary four.

First, IRS isn’t playing cagey when it comes to withdrawing a lien or forswearing future collection action. ASG just coughed up. So isn’t that like Greene-Thapedi, where, the liability being satisfied, Tax Court has nothing to adjudicate?

Second, “Without the existence of any possible prospect of future collection activity as to the liabilities at issue, this case would seem to become a mere suit for refund of the taxes alleged to have been overpaid. In further entertaining the case, we would be determining liability not incident to proposed or possible collection, as section 6330(c)(2)(B) contemplates, but solely for deciding whether ASG is entitled to a refund. Pursuant to section 6512(b), such a refund claim might be pursued in a deficiency case even after the IRS had conceded the deficiency that was the jurisdictional foundation of the case; but in the CDP context, no equivalent statute exists to permit the Tax Court to entertain a refund claim even where all collection issues have been conceded or have become moot.” Order, at p. 2. (Citation omitted) (Emphasis by the Court.). So how can Judge Gustafson keep this case alive?

Third, even supposing all we have here is a refund case, isn’t ASG wanting Judge Gustafson to assume facts not in evidence? “Section 7422(a) would seem to require the filing of a timely administrative claim for refund, and section 6532(a)(1) would seem to require the petitioner to await the IRS’s issuance of a notice of disallowance (or the passage of 6 months)-but ASG has not alleged compliance with either of these jurisdictional prerequisites. (And once ASG had met those prerequisites, it could presumably file a conventional refund suit in U.S. District court, pursuant to 28 U.S.C. sec. 1346(a)(1), or in the U.S. Court of Federal Claims, pursuant to 28 U.S.C. sec. 1491.)” Order, at p. 2.

So let ASG go file the refund claim and, if they don’t get it,  sue in USDC or USCFC, right?

Except.

ASG claims the payment wasn’t a payment, but a deposit to stop interest.

OK, says Judge Gustafson, go for it, ASG. But make it good.

“ASG shall file a supplemental response to the IRS’s motion, in which ASG shall state whether it persists in opposing the IRS’s motion to dismiss on grounds of mootness and, if it does so persist, shall (1) respond to the hypotheses stated above, (2) explain whether it contends the…remittances were ‘deposits’ (and, if so, shall explain the effect on mootness), and (3) make any other response it wishes to make.” Order, at p. 3.