No, this isn’t a lookback at that heartbreaking high school moment, when the athletes received their machine-embroidered recognition, to the teary-eyed grumblings of us lesser mortals. Today we’re looking at various Letters in the roadmap to Appeals. We just saw the Oropezas get the word from Exam via the Letter 5153 in a T. C. Memo. of even date herewith. For that, see my blogpost “Forty’ll Get Ya Twenty,” 7/21/20.

But Letter 5157 takes a starring role in Rickey B. Barnhill, 155 T. C. 1, filed 7/21/20, as Judge David Gustafson gives Letter 5157 the prominence it deserves. Rickey avers he never got the Letter 5157, although he did get the Letter 1153, breathing slaughter for TFRPs. Rickey was a director of an outfit called Iron Cross, which outfit was a trifle lackadaisical about remitting FICA/FUTA/ITW to the tune of ten (count ’em, ten) quarters.

Rickey fired in a timely protest, claiming he wasn’t liable. Appeals returned Letter 5157, which sets the appointment for a phoneathon to discuss the matter, and suggests what documents to send. Rickey says he never got Letter 5157, notwithstanding it was mailed to last known address. IRS says “too bad, so sad, mailing was enough.”

Note that the SO waited two (count ’em, two) days after the scheduled phoneathon that never happened to bounce Rickey’s appeal. IRS then gave Rickey an NFTL. Rickey asked for a CDP, and got it, but when he contested liability, he was told he had his chance and blew it.

Judge David Gustafson isn’t happy with the two-days-and-out bit. ” There may be good and sufficient reason for this brisk efficiency, but we cannot say that it gave Mr. Barnhill an ‘opportunity’ to dispute his liability.” 155 T. C. 1, at p. 30.

The magic word is “opportunity” (Section 6330(c)(2)(b). Letter 1153 gives notice of the opportunity. If the responsible party fails or refuses to act timely, then receipt of the Letter 1153 is enough. And so it was in many cases, wherefore it became Tax Court slang to call Letter 1153 the opportunity.

But not here.

“The facts before us may not suggest a deliberate, arbitrary refusal by Appeals to hear Mr. Barnhill’s appeal, but a taxpayer who did suffer such a refusal could hardly have received any less of ‘an opportunity to dispute * * * [his] tax liability’ for the TFRP at issue within the meaning of section 6330(c)(2)(B) than Mr. Barnhill did. As we explain above in part II.B.2., receipt of the Letter 1153 is required not for the sake of receipt itself but rather for the opportunity it is supposed to deliver.” 155 T. C. 1, at p. 31. I left out part II.B.2, because you can read it for yourself; Judge Gustafson says it all right here.

IRS claims harmless error. Judge Gustafson is too well-mannered to give IRS’ counsel a Taishoff “Oh, Please,” but I’m not. Harmless error doesn’t excuse abuse of discretion.

And while IRS was willing to consider an OIC based on doubt of liability, that’s not a CDP, and if Rickey’s story is true, he was and is entitled to one.

Note this comes up on IRS’ motion for summary J. In summary J, all of the facts asserted by the non-movant (Rickey) are assumed to be true, except only those asserted by the movant (IRS) and not challenged by Rickey with contrary facts. So Rickey still has to prove he never got the letter.

Note also IRS’ snarky comments; Judge Gustafson does.

” For purposes of the Commissioner’s motion, we also assume that–as Mr. Barnhill has declared under penalty of perjury–he did not receive the Letter 5157. We do not cross our fingers behind our back as we state this assumed fact, though the Commissioner’s papers seem to suggest that we should. His motion states: ‘While petitioner claims he did not receive the letter from Appeals officer P scheduling the telephone conference, such letter was sent to the same address as the Letter 1153, which petitioner received.’ (Emphasis added.) His reply states: ‘The Appeals officer sent petitioner a Letter 5157 to his last known address (the address on the Letter 1153) scheduling a telephonic conference. Petitioner claims he did not receive the Letter 5157.’ (Emphasis added.) If the Commissioner wishes to raise doubt about that assertion, the forum for that effort would be a trial, not a motion under Rule 121 that asserts we need no trial.” 155 T. C. 1, at p. 14. (Name omitted).

Ad hominem arguments rarely ingratiate those who make them to the trier of fact.