Attorney-at-Law

LET’S PLAY JEOPARDY – REDIVIVUS

In Uncategorized on 02/08/2021 at 15:34

Let’s take “pedigree” for a lot. Jurisdictional pedigree, that is. Our quizmaster today is Judge Tamara Ashford, and our contestant is Estate of Georgia M. Spenlinhauer, Deceased, Robert J. Spenlinhauer, Executor, et al., Docket No. 11286-18, filed 2/8/21.

IRS assessed the estate tax liability to RJ as ex’r and separately as transferee. But the IRS is authorized by Section 6861 to quick-kick the assessment if it looks like the one assessed is about to skip with the boodle. Which it did.

RJ got a pair of Letters 1584(P), one as ex’r of the estate of the late Georgia, and the other as transferee of said estate, hitting him up jeopardy-wise for estate tax. But RJ blew the 30-day cutoff to go to IRS “…requesting a redetermination of whether or not: (1) the making of the assessment is reasonable under the circumstances, and (2) the amount so assessed or demanded as a result of the action is appropriate under the circumstances.” Order, at p. 3. And RJ got a couple NFTLs (hi, Judge Holmes) at no extra charge.

RJ is contesting the reasonableness of the assessments via a Rule 55 motion to review.

“Pursuant to section 7429(a)(1)(B), within 5 days after the day on which a jeopardy assessment is made, the Commissioner is required to provide the taxpayer with a written statement of the information that he relied upon in making such assessment. Pursuant to section 7429(a)(2), within 30 days after the day on which the taxpayer is furnished the aforementioned written statement or within 30 days after the last day of the period within which such statement is required to be furnished, the taxpayer may request an administrative review of the jeopardy assessment. This administrative review consists of determining whether or not (1) the jeopardy assessment was reasonable under the circumstances and (2) the amount so assessed or demanded as a result of the jeopardy assessment was appropriate under the circumstances. Sec. 7429(a)(3).” Order, at p. 4. (Footnote omitted).

Usually one contesting a jeopardy assessment after losing admin review has to go to USDC per Section 7429(b)(2)(A). But pore l’il ole Tax Court can wade in if the jeopardized petitions a deficiency before the jeopardy assessment is made. But RJ didn’t. His Letters 12153 (one as ex’r of the estate and one as transferee) “…unmistakably show that they were requests by Mr. Spenlinhauer for a collection due process hearing with respect to the filed notices of Federal tax lien of which he was advised on or around the same day as the making of the jeopardy assessments. Indeed, nowhere on these forms does Mr. Spenlinhauer indicate that he is requesting administrative review of the jeopardy assessments; his stated ‘reason for the dispute or * * * [his] request for a CDP hearing’ was to deny ‘any responsibility or liability’ for the estate tax…, i.e., to challenge the underlying liabilities, and he checked the box on these forms for lien withdrawal. Each jeopardy assessment notice to Mr. Spenlinhauer clearly instructed him as to how to challenge the jeopardy assessment, i.e., ‘you must file a written protest with the Area Director within 30 days from the [jeopardy assessment notice’s] date, requesting a redetermination’.” Order, at p. 5, footnote 7.

That sinks RJ. Quoting Abraitis v. United States, 709 F.3d 641, 644-645 (6th Cir. 2018) (holding that section 7429(a)(2) and section 7429(b)(1) ‘lack[] jurisdictional pedigree’; rather, these rules ‘present[] an exhaustion requirement’ that ‘remains mandatory, inasmuch as the availability of judicial review hinges on either exhaustion or a timely request for administrative review’).” Order, at pp. 5-6.

So Tax Court has jurisdiction. But RJ never exhausted his administrative remedies, so he’s out.

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