In Uncategorized on 11/05/2019 at 14:54

Interestingly, neither Section 7345(b)(2) nor the IRS website on passport grabs mentions starting a case with the Taxpayer Advocate Service (TAS) as a way to force decertification of delinquency and spring the alleged delinquent’s passport.

Howbeit, Wayne Irving Newton, Docket No. 16578-18P, filed 11/5/19, got “erroneously decertified” per TAS’ intervention. Order, at p. 1.

But Judge Joel Gerber, apparently now Tax Court’s passport-grab specialist, seems to have found a basis somewhere, besides an unpublished IRS or TAS ipse dixit. “The opening of a TAS case is one of the situations where respondent will ‘decertify’ a taxpayer.” Order, at p. 1.

My colleagues Peter Reilly, CPA, and Mr. Paul Streckfus were recently lamenting about “secret law” in the area of exempt organizations, settlements made where there is no way to review briefs and ancillary documents online, to the detriment of the small firm or single-shingle, who has not a K Street office housing a platoon of paras to surry on down to The Glasshouse at 400 Second Street NW, to photocopy the lot.

Seems there’s secret law in the passport-grabbing area too.

IRS quickly sent out a recertification, but it was after Wayne Irving moved to restrain collection or cause disgorgement, and after IRS had moved for summary J, and after Cert One was decertified. So theoretically everything was mooted when the decertification, whether erroneous, baseless or otherwise, took place.

IRS, trying to retrieve the situation, asks Judge Gerber to bail them out.

“Respondent asks the Court to continue with the present proceeding as though the decertification had not occurred. In support of respondent’s contention, it is argued that petitioner continues to meet the serious delinquent debt definition for the new certification. In essence, respondent asks the Court to ignore the decertification and proceed on the merits of the initial certification from which we acquired jurisdiction over petitioner’s case.

“Under section 7345(e)(1) this Court has jurisdiction to review the Commissioner’s certification of a seriously delinquent tax debt for error. Our jurisdiction in this case springs from [Cert One] from which petitioner sought relief. Because [Cert One] was decertified and no longer exists, this case premised upon that certification became moot. We have not been advised if petitioner filed a petition seeking relief from the new certification…. Moreover, Petitioner’s Motion to Restrain Assessment or Collection or to Order Refund of Amount Collected and Respondent’s Motion for Summary Judgment, as supplemented, are likewise moot.” Order, at pp. 1-2.

So Wayne Irving can petition the new certification, unless he has sooner flown the coop with passport in hand.

Judge Gerber, sua sponte, kicks both IRS and Wayne Irving to the cliché. Both motions are moot. And so is the case.

Be careful, readers. I’m not suggesting the TAS gambit will work to unstick your clients’ passports. Especially now that Judge Gerber has turned on the lights. Still and all,  I can’t help wondering if that’s how Derrick Tartt got his passport unstuck. See my blogpost “If Ya Gotta Go,” 10/18/19.

Edited to add, 11/9/19: I must be slow on the uptake. TAS can issue a Taxpayer Assistance Order, per Section 7811(b)(2), to require IRS to spring a passport. Judge Gerber obviously thought that “opening a TAS case” was sufficient shorthand for “TAS issuing a TAO per Section 7811(b)(2)” to tip off slow-witted bloggers that there’s nothing “secret” about it. It’s been the law for upwards of twenty years.

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