In Uncategorized on 06/20/2019 at 17:40

Back in April, I lamented that, when Maria Ivon Moya invoked the Taxpayer Bill of Rights (TBOR) and got short shrift, “… 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.” See my blogpost “The Taxpayer Bill of Goods,” 4/17/19.

Well, today Judge Goeke has gotten something better than one pro se against four (count ‘em, four) IRS lawyers. The Jersey Boys are here, facing off against one IRS counsel, and I hoped for better.

But in Atlantic Pacific Management Group, LLC, 152 T. C. 17, filed 6/20/19, the facts are no better than Maria Ivon’s case. The NFTL for the late-filed partnership returns and information return was delivered to AP’s last known address, and while AP tried to raise delivery as an issue (the TMP was out of the country when the NFTL arrived at the last known address), the USPS’ records show delivery.

“In Buffano v. Commissioner, 2007 WL 424705, at *1, the record included information showing the address appearing on the taxpayer’s most recently filed Federal income tax return. This is the starting point for establishing a taxpayer’s last known address. In addition, the taxpayer did not even become aware of the Commissioner’s levy filing until the Internal Revenue Service (IRS) served a notice of levy on his employer. Buffano v. Commissioner, 2007 WL 424705, at *2. By contrast, petitioner has not shown that its last known address was one other than the New York address used by respondent. In fact, petitioner admits that it received the notice of NFTL filing at its New York address, and petitioner filed a request, albeit untimely, for a CDP hearing based on the notice of NFTL filing. Further, petitioner listed its New York address as its current address on Form 12153, and petitioner’s attorneys listed the New York address as the taxpayer’s address on Form 2848. Accordingly, we find this case distinguishable from Buffano.” 152 T. C. 17, at pp. 8-9 (Citations and footnotes omitted).

But the Jersey Boys are resourceful, and try the epistolary ping-pong move often seen in whistleblower cases. They claim the later letter Appeals sent denying a CDP for lateness constitutes a “determination.” And since there is no mandated form of NOD, the letter was it.

No dice, says Judge Goeke: “While we have said ‘that the absence of a document bearing a particular title or format does not mean that no determination has been made’, SECC Corp. v. Commissioner, 142 T.C. 225, 231 (2014), we have never held such a letter to be a determination that can establish our jurisdiction. Regardless, respondent mailed the letter on August 28, 2017, but petitioner did not file its petition with this Court until May 2, 2018. Assuming without deciding that the August 28, 2017, letter could constitute a determination under sec. 6330, the petition was filed well outside the 30-day window for filing under sec. 6330(d)(1).” 152 T. C. 17, at p. 10, footnote 7. For the SECC story, see my blogpost “Classified,” 4/3/14.

But all this is background. The Jersey Boys invoke Section 7803(a)(3), the TBOR. They claim their client’s right to a hearing in an impartial forum has been denied.

The Jersey Boys never practiced “no-fault” law. Be the ice thin and the sun hot, they will go for it. Unhappily, this is not the case that favors the approach.

“…section 7803(a)(3) itself does not confer any new rights on taxpayers; it merely lists ‘taxpayer rights as afforded by other provisions of’ the Code. Further, section 7803(a)(3) imposes an obligation on the Commissioner to ‘ensure that employees of the Internal Revenue Service are familiar with and act in accord with’ such rights. It does not independently establish a basis for jurisdiction in this Court.” 152 T. C. 17, at pp. 10-11.

The Jersey Boys can’t connect the dots to show how they get jurisdiction. And it gets worse.

“Petitioner cites section 6320(b)(1) as giving it a right to a hearing but conspicuously omits any reference to section 6320(a)(3)(B) mandating a 30-day timeframe in which to request such a hearing. Petitioner’s failure to cite this provision evidences either an unfamiliarity with the statute or a deliberate attempt to mislead the Court. We have already held that petitioner’s failure to timely request a CDP hearing leaves us without jurisdiction to consider this matter. Attempting to confuse our jurisdiction in this case with citations of section 7803(a)(3) does not aid petitioner’s point. Petitioner appears eager to raise arguments it could have raised at a CDP hearing; however, its failure to timely request a hearing has left it without a right to raise those points before respondent or this Court.” 152 T. C. 17, at p. 12.

But all is not lost for AP. “It would appear, however, that petitioner is not without remedy and remains free to challenge respondent’s determinations through a refund action.” 152 T. C. 17, at p. 12.

Looks like I was right back in April: The Taxpayer Bill of Rights is The Taxpayer Bill of Goods.


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