Attorney-at-Law

A CLAIM IS NOT A CREDIT – PART DEUX

In Uncategorized on 06/11/2019 at 16:42

Gregory L. Murphy and Monica J. Murphy, 2019 T. C. Memo. 72, filed 6/11/19, are petitioning a decision letter from an equivalent hearing off a NITL.

Before you holler “no jurisdiction! Equivalent hearings confer no jurisdiction on Tax Court,” consider. The Murphys’ Form 12153 was timely postmarked, although the flailing datestampers at Appeals didn’t get around to tagging it until much later. So IRS concedes the equivalent hearing was really a CDP, and the Murphys’ petition therefrom is timely.

But the Murphys’ claim that they should’a had a credit from four (count ‘em four) years before the year at issue to offset their liability for the year at issue,  founders. There must be an actual credit available, not a might-be, could-be.

Judge Albert G (“Scholar Al”) Lauber allows as how there’s caselaw allowing Tax Court to consider a prior year, which impacts a current year. But that has to be more than a “maybe so.”

“Our jurisdiction in CDP cases generally does not permit us to consider matters involved for nondetermination years, that is, for tax years that are not a subject of the collection action before us.  But we may consider facts and issues from other years to the extent they ‘are relevant in evaluating a claim that an unpaid tax has been paid.’  Freije v. Commissioner, 125 T.C. 14, 27 (2005).  An available credit from another year is a fact that may affect the taxpayer’s correct liability for the year that is the subject of the collection action.  Weber v. Commissioner, 138 T.C. 348, 371-372 (2012).  But a credit must actually exist in order to constitute an ‘available credit.’  A mere claim for a credit ‘is not an “available credit,’” and such a claim ‘need not be resolved before the IRS can proceed with collection of the liability at issue.”  Id. at 372; see Del-Co W. v. Commissioner, T.C. Memo. 2015-142, 110 T.C.M. (CCH) 119, 120-121.” 2019 T. C. Memo. 72, at pp. 9-10.

For the Del-Co story, see my blogpost “A Claim Is Not a Credit,” 8/5/15.

The Murphys had claimed the credit before, and IRS denied it. But the Murphys never headed for USDC or USCFC for a rematch, per Section 7422.

 

 

 

 

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