In Uncategorized on 05/01/2020 at 10:20

There’s nothing worth discussing so far among the orders issuing today from the off-site computers, now the loci tenens of US Tax Court. But on the Tax Court website there is a reference to Notice 2020-23, 4/9/20, which I blogged at the time without much thought; see my blogpost “Le Quinzième Juillet,” 4/10/20.

In the further editing I did to that blogpost, I danced around the issue I now raise.

Section 6213 sets firm filing deadlines for petitions from SNODs, and Section 6330 does likewise for petitions from NITL NODs. That these deadlines are jurisdictional, and not affirmative defenses, rests on the stays of collection and other enforcement actions therein set forth. This is a necessary corollary to the Section 7421 Anti-Injunction Act, which bars any injunction of IRS’ powers of collecting the revenue. Filing a Tax Court petition serves as a preliminary injunction (what we State courtiers call a temporary restraining order, or TRO), preventing IRS from doing the Assyrian while determination of the petition is pending, thus putting a loophole in Section 7421. And Congress obviously wanted to limit any such stay.

Now all the foregoing are acts of Congress. Only Congress can change an act of Congress. The Supreme Court may hold an act unConstitutional, thus unenforceable, but the act remains, however toothless. I remember a meeting with IRS representatives many years ago, when a Bar Association committee asked for restraint in enforcing a very onerous and burdensome tax lien statute. The reply was: “We are sworn to uphold the law. Meet with your Senators and Representatives.”

So how does IRS decide that the present crisis, however dire, desperate and unprecedented, allows them to set aside the law, extend the statutory period for filing, and in effect abrogate Section 7421? Or does Notice 2020-23 mean that IRS can commence collection after March 13, only to have that action reversed and set aside on July 15 if a petition is filed before then?

I entirely agree that relief is required. The requirement that petitions must be on paper, wet-inked and snail-mailed is long since outdated and burdensome. And to bounce the snail-mail filings during the current emergency, only to require them to be re-mailed whenever the emergency ends, is worse.

Lest I be contemned as a closet Libertarian, I stress that this is not a political attack on IRS or Treasury or anyone else. I impute no nefarious motives. As Prof. Paisley taught us long ago On The Hill Far Above, danger invites rescue.

But as a lawyer, I am acutely aware that human nature in unchanging. Separation of powers is the best defense against the human propensity for overreaching. The remedy must come from Congress.

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