In Uncategorized on 09/05/2018 at 16:37

Once you raise underlying liability, the record rule is off the table.

Debra L. March, Docket No. 6161-17L, filed 9/5/18, is making a return appearance here, as that Obliging Jurist, Judge David Gustafson, once again makes plain that SNODs don’t equal NODs when it comes to the record rule.

Debra was here last month in my blogpost “Agree with Thine Adversary Whilst Thou Art in the Way” – Maybe,” 8/10/18.

Debra is unhappy that Judge David Gustafson deemed IRS’ Rule 91 facts conclusive. She claims now she objects to IRS going outside the record rule in her CDP.

But she also challenged her underlying liability, although Judge Gustafson isn’t going to decide that she had a prior chance.

“However, this Court remains of the view that it is not confined to the administrative record in CDP cases, and this is especially so where the CDP case involves a challenge to the underlying liability, pursuant to section 6330(c)(2)(B), and thus resembles the more typical deficiency case. Of course, we do submit to the Courts of Appeals, and we therefore follow the law as construed by the Court of Appeals to which a given case is appealable, even where we disagree; but in this case appeal would be to the Court of Appeals for the 10th Circuit, which, as far as we know, has not spoken on this issue. Cf. Kasper v. Commissioner, 150 T.C. No. 2, slip op. at 19, n.13 (2018) (surveying circuit law). (Ms. March cites Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994), but it is not a CDP case, has no obvious relation to tax, and was decided before section 6330 was even enacted.)” Order, at pp. 3-4.

“Obvious relation to tax,” Judge? What about Mayo Clinic? No separate body of law for tax, as opposed to all other law.

Howbeit, Debra doesn’t want to show for a trial, and is willing to go with a Rule 122. So let both sides stipulate to everything they can, and go with it.


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