In Uncategorized on 02/26/2018 at 16:49

I’ve blogged before the situation where non-receipt of a Letter 3172 notice of TFRPs allows a challenge at a CDP.  Today Judge Halpern has some SFRs, which gave rise to SNODs, the mailings of which are somewhat less than perfectly documented.

Therefore Rodney P. Walker, 2018 T. C. Memo. 22, filed 2/26/18, gets remanded to Appeals, so IRS can rifle through their files to see what evidence they can muster that Rod got the SNODs.

Both Rod and IRS want summary J. Rod loses his bid, but IRS only gets partial.

“Summary judgment expedites litigation.  It is intended to avoid unnecessary and expensive trials.  It is not, however, a substitute for trial and should not be used to resolve genuine issues of material fact.” 2018 T. C. Memo. 22, at p. 3.

Rod didn’t raise nonreceipt for a couple years (hi, Judge Holmes). so those are off the table, but he did for the rest.

Because of dicey mailing logs and dubious USPS Forms 3877, IRS doesn’t get presumption of regularity of mailing.

“The ‘presumption of regularity in mailing’ is a particular application of the more general ‘presumption of regularity’ (sometimes, presumption of official regularity), which supports the proposition that, in the absence of evidence to the contrary, public officers are presumed to have discharged their duties.  See, e.g., United States v. Ahrens, 530 F.2d 781, 785 (8th Cir. 1976) (‘In our view, the presumption of official regularity controls the question of the validity of the notice of deficiency.  “The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”  United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, * * * (1926).’).  With respect to the mailing of a statutory notice, we have said: ‘[W]here the existence of the notice of deficiency is not disputed, a properly completed Form 3877 by itself is sufficient, absent evidence to the contrary, to establish that the notice was properly mailed to a taxpayer.  * * * More specifically, exact compliance with the Form 3877 mailing procedures raises a presumption of official regularity in favor of respondent.’ Coleman v. Commissioner, 94 T.C. 82, 91 (1990).  The failure of exact compliance with the Form 3877 mailing instructions, however, does not mean that the notice was not mailed; it means only that the evidence of an undisputed notice and a Form 3877 in less than exact compliance do not, even absent evidence to the contrary, establish as a matter of law that the notice was mailed to the taxpayer. As we said in Coleman v. Commissioner, 94 T.C. at 91:  ‘A failure to comply precisely with the Form 3877 mailing procedures may not be fatal if the evidence adduced is otherwise sufficient to prove mailing.’” 2018 T. C. Memo. 22, at p. 19, footnote 6.

But IRS doesn’t have any other evidence. So back to Appeals.


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