In Uncategorized on 10/06/2017 at 16:28

The question posed by the late great Larry Hart, to the immortal music of Richard Rodgers, in the 1937 hit Babes in Arms, sets up the interesting off-the-bencher by that Obliging Jurist Judge David Gustafson, to which I animadverted yesterday in  my blogpost “Oblige Me With the Page,” 10/5/17.

Turns out the complete off-the-bencher was on the Docket Search page.

Nathanael L. Kenan, Docket No. 22293-16, filed 10/5/17, claims he sent USPS a change-of-address form when he moved six months before IRS sent him the SNOD. Judge Gustafson believes Nat when he says he never got the SNOD, but that’s not enough.

Judge Gustafson warned Nat back in August that he had the burden of proof, so he had to prove dates when he sent in the change-of-address.

Nat shows up for “trial,” although it’s not a trial. IRS claims untimely petition, Nat claims invalid SNOD because not sent to last known address. “(Our order stated that the case would proceed ‘to trial’, but since both parties dispute our jurisdiction (though for different reasons), a trial of the merits of Mr. Kenan’s … liability could not happen in this case, and the proceeding was in the nature of an evidentiary hearing as to jurisdiction.).” Order, at transcript, p. 6. What we State courtiers call a “traverse.”

But Nat has only the Michael Corleone gambit. He doesn’t have a copy of the change-of-address form, nor the confirmatory letter USPS is supposed to send confirming receipt, nor any letter with the new address sticker showing it was properly forwarded.

Worse, “In the absence of any document reflecting what Mr. Kenan submitted to the USPS, we are also unable to find whether, in the words of the regulation, ‘the taxpayer’s name and last known address in IRS records match the taxpayer’s name and old mailing address contained in the NCOA [National Change of Address] database’. Before assuming that a new address in the USPS database is really the address of a taxpayer, the IRS must be able to correlate that new address to the old address and the taxpayer. Any difference in the IRS’s record of the taxpayer’s name and old address, on the one hand, and the USPS’s data of an individual and his new address, on the other, would be a reason not to use the USPS address as an LKA for a taxpayer. Without any documentation of Mr. Kenan’s notice to the USPS, we cannot know whether his name and old address as he rendered them on it might have differed from his LKA [Last Known Address] maintained in the IRS records, by something like the presence or absence of a middle name, the use of initials or a nickname, or an abbreviation or misspelling of a street name or city name. We are unable to find precisely what he submitted to the USPS or when.” Order, at Transcript pp. 9-10.

Takeaway- Sloppy drafting can sink your client, and you’ll never know it. Adding (or losing) a middle name or initial, abbreviating or leaving out “street,” “road,” “avenue,” or whatever can let IRS off the hook when they send a SNOD to the wrong address.


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