Attorney-at-Law

THE TAS GAMBIT- PART DEUX

In Uncategorized on 11/14/2019 at 16:54

Don’t Count On It

It isn’t clear whether TAS issued a Section 7811 TAO telling IRS to withdraw the SNOD it handed Darline Augustine, Docket No. 12248-18L, filed 11/14/19. In any event, IRS didn’t.

All Judge David Gustafson tells us is that “Ms. Augustine had correspondence with personnel in the office of the National Taxpayer Advocate (‘NTA’) about a request that the IRS rescind the SNOD. The NTA stated that a rescission should be made, but no action was taken before Ms. Augustine’s deadline for filing a Tax Court petition; and it appears the SNOD was never rescinded.” Order, at p. 2.

Darline never engaged a LITC, although she said she was going to, and didn’t provide a completed Form 433-A. Notwithstanding same, the SO offered an IA, but Darline refused. Darline wanted to fight about liability, but it was too late. IRS gets summary J.

Questions arise. Was there a TAO? What happens if there is a TAO and IRS doesn’t comply? Tax Court clearly hasn’t jurisdiction to enforce the TAO, and hasn’t jurisdiction to review the SNOD once the magic 90 days is gone. Does TAS go to USDC for an injunction? Can the taxpayer?

Judge David Gustafson, once a purveyor of conundra to puzzle, bewilder, instruct and (dare I say it?) amuse practitioners, is not in the vein.

“Whatever else transpired among Ms. Augustine, SBSE, the NTA, and Appeals, it remains true that she received the SNOD and could have litigated her … liabilities in this Court if she had filed a timely petition seeking that relief. Moreover, even if her receipt of the SNOD were not determinative, she was also given an opportunity…to be heard by IRS Appeals on the issue of her underlying liabilities. This, too, was a prior ‘opportunity to dispute such tax liability’.

“We note that, if Ms. Augustine were to pay the tax in dispute, section 6330(c)(2)(B) would not bar her from filing a timely administrative claimed for refund and, if it were denied, timely litigating that refund claim in the district court or the Court of Federal Claims. See 26 U.S.C. secs. 6511(a), 6532(a), 7422(a); 28 U.S.C. secs. 1346(a)(1), 1491(a)(1). “ Order, at p. 7.

Takeaway—Get a TAO from TAS. Make it as broad as the TAS will allow. But petition anyway.

Edited to add, 11/16/19: I don’t see how TAS or the taxpayer can use the Courts to stop assessment or collection if TAS issues a Section 7811(b) TAO, and IRS assesses or collects anyway. Section 7421 (Anti-Injunction Act) makes no exception for Section 7811 TAOs. Did Congress overlook something, or is this another example of The Taxpayer Bill of Goods?

 

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