In Uncategorized on 12/03/2019 at 18:03

Once again, Judge David Gustafson cannot be obliging. Today it’s James Michael Matarozzo &  Heather Renee Beach, Docket No. 19228-14, filed 12/3/19. Jim & Heather stiped out two years with IRS. Jim & Heather claim IRS agreed not to audit them for the next two years thereafter, because Year Two was a no-change. Except the stip and the decision for the two years doesn’t say anything about no audit.

Jim & Heather want Judge Gustafson to rewrite the decision (except it became final four years ago) to put in the two-year free-fire zone, and keep IRS from collecting (except they never petitioned the NODs they got, so the Anti-Injunction Act, Section 7421, puts paid to that).

Jim & Heather cite Pub. 334, at p. 46. But all that says is “If we examined your return for the same items in either of the 2 previous years and proposed no change to your tax liability, please contact us as soon as possible so we can see if we should discontinue the examination.” Order, at p. 2.

“Apparently the IRS will sometimes forego a subsequent examination in the case of ‘an individual tax return without a Schedule C or Schedule F’ if there has been ‘an audit in the preceding two years’, Internal Revenue Manual part (02-11-2016); but (1) the notice of deficiency attached to petitioners’ petition indicates that their return did include a Schedule C, and (2) this agency practice, even where it is applicable, does not create a legal right or immunity.” Order, at p. 6.

But as to the celebrated Taxpayer Bill of Rights, which term appears prominently in Pub. 334 at p. 45 of the latest version, Judge David Gustafson says “no go.”

“The Taxpayer Bill of Rights (‘TBOR’) consists of ‘10 provisions’ and contains ‘core concepts about which taxpayers should be aware’ but does not create any rights additional to the existing rights of taxpayers ‘scattered throughout the [tax] code.’ I.R.S. News Release IR-2014-72 (June 10, 2014); see also Moya v. Commissioner, 152 T.C. __, __ (slip op. at 24-25) (‘in adopting TBOR in 2014, the Commissioner had no more in mind than consolidating and articulating 10 easily understood expressions [of] rights enjoyed by taxpayers and found in the Internal Revenue Code and in other IRS guidance . . . . [T]he Commissioner had no power to legislate any new rights’). This TBOR appears in the IRS’s Publication 1 and also in the place where petitioners found it–the IRS’s ‘Tax Guide for Small Business’, I.R.S. Publication 334 (Dec. 28, 2018). Congress later enacted the TBOR in section 7803(a)(3), stating the requirement that ‘the Commissioner shall ensure that employees of the Internal Revenue Service are familiar with and act in accord with taxpayer rights as afforded by other provisions of this title,’ followed by the 10 provisions. But neither the IRS’s TBOR nor section 7803(a)(3) as enacted by Congress creates any taxpayer rights; rather, they both allude to provisions elsewhere in the Internal Revenue Code.” Order, at p. 5.

No vacation, no rewrite, no injunction.

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