In Uncategorized on 10/10/2018 at 18:17

Enrollment can be lengthy, and you need to enroll well in advance of any payment being due (allow at least three weeks, because PIN comes by snail-mail), and you need password, PIN, your previous year’s AGI, and your bank account routing number and account number to use it. And you have to change your password every six months or so. Check out Publication 966.

But if you want a good reason to enroll in, and pay via, the Electronic Federal Tax Payment System, take a look at David H Malasky and Audrey Malasky, 151 T. C. 9, filed 10/10/18 and glance at 151 T. C. 8, filed same date with same parties.

Tax Court burns through one hundred fourteen (count ’em, 114) pages to conclude that, when Dave’s and Audrey’s check (which was written on an account with sufficient funds when written) bounced because IRS had levied on their account before cashing their check, IRS could apply the proceeds how IRS wanted.

The scope of review in this CDP is abuse of discretion. Judge Holmes needs six (count ’em) six pages to get there in 151 T. C. 8, largely because IRS and Dave and Audrey agree it is, and there’s no dispute about the liability in question, hence de novo review is off the table.

On to 151 T. C. 9.

Ex-ch J Michael B (“Iron Mike”) Thornton relies on the voluntary-vs-involuntary payment rules, and basic negotiable instruments law. Payment from a levy is involuntary; a check is conditional payment until final payment from the drawee bank; and there’s no frustration of performance absent a contract, and taxes aren’t a contract between sovereign and taxpayer. So voluntary payment becomes involuntary when the check bounces, even if IRS caused the bounce.

There’s much argy-bargy about Audrey’s daddy’s trust, of which Audrey was both trustee and beneficiary, which I leave to the T&E specialists to unscramble. That’s to do with whether the SO was wrong about the RCP in bouncing Dave’s and Audrey’s PPIA. But as I’ve said before, any attorney who can’t find an ambiguity in any document should find another line of work.

But even though Judge Mark V Holmes plays again his signature role as The Great Dissenter (his real argument is it isn’t fair, even though Dave and Audrey tendered in Houston and the levy came from Philly), ex-Ch J Iron Mike carries the day without even a dictionary chaw.

Judges Buch and Pugh suggest paying by certified check, showing how the law lags technology.

I’ll spare all y’all a systematic dissertation of this unfortunate tale, except to say that had Dave and Audrey used EFTPS, they’d have beaten the levy, paid (or almost paid) the recent year’s liability, and had a shot at an SOL blow-off of the earliest year, to which IRS applied the levied sum.


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