In Uncategorized on 01/30/2019 at 17:01

IRS has Vivian Ruesch, Docket No. 2177-18L, filed 1/30/19, on a schneid, as the cardplayers say, and ex-Ch J Michael B (“Iron Mike”) Thornton doesn’t even need to take a nibble from the dictionary to see Viv off in this designated hitter.

Viv had her $63 State tax refund grabbed to satisfy a $300 shortfall, which, together with a grab of overpayments still in play, extinguished her 1040A liability for the year at issue. Thus, no SNOD. Nevertheless, Viv sent in Letter 12153 concerning the NFTL IRS had filed, but IRS withdrew the NFTL after Viv’s equivalent hearing ended with a zero balance NOD.

Meanwhile, IRS claims the 10K penalty for nonfiling foreign partnership (Form 8865) or foreign corporation (Form 5471) returns for that same year, and gives Viv a NFTL for six (count ‘em, six) years’ worth of Section 6038(b) $10K annual chops. Viv files Form 9423 (Collection Appeal Request) and Letter 12153, which IRS first claims was untimely, but as it was faxed to the RA who was handling the 1040A matter, IRS concedes it was timely, but the matter is moot.

Ex-Ch J Iron Mike wants to toss Viv’s original petition, as there’s no 1040A left.

Viv’s counsel claims the 12153 covers the NFTL for the six years’ chops.

“Petitioner contends that the case is not moot because ‘there is currently outstanding liability for the [year at issue]’ as relates to the section 6038(b) penalty. Petitioner further contends that ‘res judicata precludes respondent’s determination and assessment of a section 6038(b) penalty’ because, petitioner says, respondent’s decision letter constitutes a final determination that petitioner owe [sic] no tax, interest, or penalties for [year at issue].” Order, at p. 5.

I give Viv’s counsel a Taishoff “Good Try, Second Class.”

Administrative proceedings give no rise to res judicata, as that applies only to judicial proceedings. In any case, Viv has her shot with Appeals, and can petition any NOD, whether for year at issue or the other five, once Appeals decides them.

IRS can claim more types of tax or chops tax due for the same year, and if any of them is unripe when the other is determined, Tax Court is open as soon as it ripens.




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