Attorney-at-Law

THE TAXPAYER BILL OF GOODS

In Uncategorized on 04/17/2019 at 16:03

Much fanfare accompanied the promulgation of the so-called “Taxpayer Bill of Rights.” Judge James S (“Big Jim”) Halpern has compressed this title into TBOR, and I shall do likewise.

Maria Ivon Moya, 152 T. C. 11, filed 4/17/19, claims IRS trampled on these rights by not giving her an audit nearer her home, sent her misleading correspondence, and inconsistent information. But Maria Ivon never challenged IRS’ determinations blowing off her Sched C losses and raising her taxable Social Security payments. And although she timely petitioned the SNOD IRS sent her, she never assigned error to what IRS did. And Judge Big Jim catechized Maria Ivon both telephonically and personally to raise specific issues with IRS’ numbers. She didn’t.

In her post-trial brief, Maria Ivon complained about IRS’ counsel and the Taxpayer Advocate not helping her, but Judge Big Jim says even if he considered that, it wouldn’t change the result.

Maria Ivon argues the SNOD was invalid because IRS violated her rights. Well, apparently Mark Zuckerberg tried a similar move based on TBOR back in 2017 in USDCNDCA; see Facebook and Subsidiaries v. Com’r, 17-cv-06490-LB, 2018. Mark fared no better.

Greenberg’s Express is the barrier. In a deficiency case, you get a de novo review. Therefore, all that is past isn’t even prologue. For sixty bucks and a certified letter, you get a new shuffle-and-deal, whatever IRS did or didn’t do.

When TBOR first blipped the radar, its biggest proponent, NTA Nina E. (“The Big O”) Olsen, made it crystal clear that no new rights were created thereby. All TBOR did was put in one place, and in simple terms, what was scattered throughout the IRC.

Legislative attempts to require IRS’ high command to “teach them diligently” to all IRS personnel, and to “talk of them when thou sittest in thine house, and when thou walkest by the way, and when thou liest down, and when thou risest up,” as a much more Exalted Authority put it in connection with ten much more significant pronouncements, never got enacted.

Simple, right? Raise your objections to the deficiency in your petition, or lose them; forget the IRS’ missteps. Only the most blatant Constitutional violations will avail, and this isn’t such a case.

One thing puzzles me: IRS ”…alleges that petitioner will have the opportunity to resolve this case with the IRS Office of Appeals.” 152 T. C. 11, at p. 6. How? Maria Ivon had her chance in this proceeding, and never addressed the deficiencies themselves. No way do you get a second chance at liability on a CDP if you got the deficiency, petitioned it, and lost in Tax Court. Maybe IRS meant CNC, IA, OIC as to collection, but that was certainly a misleading statement.

Howbeit, this case was hardly well-litigated, and I’m sorry we didn’t get a better fact pattern and record in a precedent-setting case.

“Neither party has presented us with a rigorous argument either way as to whether the IRS TBOR accorded petitioner rights the violation of which would give us reason to ignore the principle articulated in Greenberg’s Express and look behind the notice in order to remediate any violation.  Petitioner has made no argument at all.  Respondent’s argument that rights found in the IRS TBOR are not constitutional rights is perfunctory.  Nevertheless, on our own examination of the question, we conclude that, even if we were to credit petitioner’s claims that, in examining her returns, respondent violated her rights to be informed, to challenge the IRS position and be heard, and to a fair and just tax system (all rights found in the IRS TBOR) and, also, that he failed to afford her an interview near her home in California before he issued the notice, we would neither invalidate the notice, relieve petitioner of any portion of the burden of proof, nor take any other action to remediate those violations or failure.  The simple reasons are that (1) the IRS TBOR did not add to petitioner’s rights and (2) even if everything she says is true, respondent’s missteps that petitioner complains of would not in this de novo proceeding cause us to either lift or lighten her burden of proving error in respondent’s determinations of deficiencies in her tax.” 152 T. C. 11, at pp. 16-17.

So if you get a de novo hearing before an impartial tribunal (which Tax Court is), unless IRS used unConstitutionally obtained evidence, IRS can do whatever it wanted before.

The Taxpayer Bill of Rights is the Taxpayer Bill of Goods.

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