In Uncategorized on 12/12/2017 at 23:29

It was Baserunning 101: when the runner beats the pick-off throw, make sure the fielder actually throws the ball back to the pitcher before stepping off the bag. If the fielder merely makes the gesture and you step off the bag, he will tag you out.

It’s title closer lore from long ago: the couple refinancing the mortgage. The husband is definitely the husband, but the “wife” is his girlfriend, with whom he decamps with the proceeds, leaving the title insurer to pay the lender when the true wife shows that she never signed the note or mortgage.

Well, now we have the attorney who maybe isn’t. Here’s STJ Diana L. (“Sidewalks of New York”) Leyden to tell you why IRS can’t get summary J tossing her maybe-not-client’s petition from a CDP.

It’s Adrian Dicker, Docket No. 12007-16L, filed 12/12/17. Adrian goes down for tax evasion and gets hit for criminal restitution. IRS gives Adrian a NFTL. Adrian sends in a Letter 12153 timely, says he can’t pay but will pay per the USDCSDNY’s order, and therein hangs the tale.

Adrian says he has an attorney, the same one who represented him in the criminal case, but also names another one in a 2848 POA that his attorney, whom I’ll call Ms. G, as her name gets mangled by IRS and even STJ Di drops the “Ms.”, shoots in to Appeals.

Well, the SO can’t contact Ms. G., calls Adrian who says he will, but then the SO tries Ms G again, can’t get through, never calls the second attorney (who is never heard from again), never calls Adrian, but sustains the NFTL. Adrian never sent in the Form 433-A tell-all.

OK, is there a question of fact? Yes, says STJ Di.

“On the one hand, in his letter accompanying the 12153 petitioner referred to Ms. G as his attorney and directed the Appeals Office to copy her on all correspondence. Moreover, Ms. G faxed the Form 2848 to the SO…with a letter, wherein she also refers to petitioner as ‘my client’. The Form 2848 does not appear limit the scope of Ms. G’s representation of petitioner with respect to “civil and criminal restitution” tax matters. Further, the Form 2848 also named [Attorney 2] as petitioner’s representative. Respondent has not provided any information as to whether the SO tried to contact [Attorney 2] with respect to the CDP hearing.

“On the other hand, Ms. G represented petitioner in his criminal proceedings, and it is possible that the references in petitioner’s letter to ‘my attorney’ and Ms. G’s letter to ‘my client’ is in the context of that representation. In his letter petitioner also indicated that he had discussed his case with his probation officer and authorized the Appeals Office to contact his probation officer, who would not be considered his representative for purposes of the CDP hearing. Furthermore, the Form 12153 accompanying that letter is signed by petitioner. There is no name, telephone number, or signature for an authorized representative on the Form 12153.

“Additionally, in her affidavit Ms. G states that she was brought in only as to a limited factual issue and that she was not petitioner’s counsel for purposes of the CDP hearing. Ms. G states that she represented petitioner in his criminal proceedings and during his federal sentencing, at which the District Court set a schedule for restitution payments on the basis of petitioner’s extremely limited ability to pay. According to Ms. G, while petitioner’s CDP hearing request was pending, petitioner asked her to contact the SO regarding the conditions of his restitution and the findings of the District Court and of the probation officer regarding petitioner’s ability to pay the criminal restitution. Ms. G further states that she spoke briefly with the SO…to coordinate schedules with petitioner’s probation officer so that the probation officer could contribute to petitioner’s CDP hearing. This corresponds to the information Ms. G included in her letter, accompanying the Form 2848, to the SO….Furthermore, although the SO acknowledged receipt of the faxed Form 2848, the SO does not have any notes that address the substance of the phone call with Ms. G….” Order, at pp.7-8.

So did Adrian get a CDP? While the POA gave Ms. G apparent authority, and Adrian referred to Ms. G. as “my attorney,” he may have conflated her representation in his criminal trial with representation at the CDP, and maybe the SO did likewise. Adrian signed the Letter 12153 himself, and listed no representative thereon. Adrian never sent in a Form 433-A, but the SO never contacted Attorney 2 or called back Adrian to tell him to get Ms. G on the horn.

Ms. G claims she was incommunicado for three weeks because of an illness and a death in her family. Order, at p. 4, footnote 2. Maybe the SO should have called Attorney 2 in Ms. G’s absence.

So there’s enough for STJ Di to deny summary J. Since Adrian now seeks to remand for a CDSP, let IRS respond thereto.

This blogpost is long enough, so I’ll leave the story of the hidden Boss Hoss signoff for my next.



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