Attorney-at-Law

“WHY ARE YOU MY CLARITY?”

In Uncategorized on 03/13/2019 at 17:40

Well, Neither Form 2848 Nor Form 4868 Is

The short answer to the question Zedd asked via Foxes back in 2012 is set forth hereinabove. But Judge Buch tells the whole story in Damian K. Gregory and Shayla A. Gregory, 152 T. C. 7, filed 3/13/19.

I put in dates because they’re necessary.

D and S moved between June, 2015 and filing 2014 on extension in October. When 2014 was examined, they had already sent in a Form 2848 Power of Attorney in November 2015, and an Application for Automatic Extension to File, Form 4868, in April, 2016, showing new address. IRS send a SNOD to old address in October, 2016.

Everyone agrees D and S never were aware of the SNOD until just after the 90 days had run, in January, 2017. They petitioned same day. D and S argue IRS knew of new address via the 2848 and the 4868.

“Last filed return” is one test. “These forms do not fall within the class of documents that are typically considered to be returns.  Most commonly, a return is a document that is used to report a tax liability.  See. e.g., Beard v. Commissioner, 82 T.C. 766 (1984), aff’d, 793 F.2d 139 (6th Cir. 1986). Under what is commonly called the Beard test, for example, a return must meet the following criteria:  ‘First, there must be sufficient data to calculate tax liability; second, the document must purport to be a return; third, there must be an honest and reasonable attempt to satisfy the requirements of the tax law; and fourth, the taxpayer must execute the return under penalties of perjury.”  Id. at 777.  Neither Form 2848 nor Form 4868 meets any of these criteria:  They do not provide any data necessary for calculation of a taxpayer’s tax liability, they do not purport to be returns, and they cannot reasonably be considered attempts at making a return.” 152 T. C. 7, at pp. 7-8.

Anyhow, Rev. Proc. 2010-16 says neither one is a return.

“Clear and concise notice” is the other test. If either the 2848 or the 4868, both of which showed new address, gave “clear and concise” notice to IRS of new address, then SNOD invalid.

Well, once upon a time they did. But not now.

Back in 1997, the 2848 did give notice. But that ended prior to 2014. Now the instructions to both forms follow Rev. Proc. 2010-16, and explicitly state that neither of these give “clear and concise” notice to IRS of a change of address. Form 8822 Change of Address, to which the applicant is directed in the instructions to the Form 4868, is the form to use.

D and S are out.

Once again, those who need this won’t read this, and those who read this don’t need this.

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