Attorney-at-Law

DETERMINATION GETS DETERMINATION

In Uncategorized on 08/23/2021 at 17:15

Nilda E. Vera, 157 T. C. 6, filed 8/31/21*, shows that determination will get you a determination, hence a ticket to Tax Court, even though you were previously tossed for lateness.

Nilda sought innocent spousery for 2013, got a NOD denying it, and petitioned a day late. Tax Court tossed Nilda. Then Nilda came back a couple months (hi, Judge Holmes) later for 2010, and included 2013 in her claim, and got denied as to both, and petitioned timely.

Judge Buch says the Innocent Spouse Unit determined Nilda ineligible as to both years, so Tax Court has jurisdiction over both.

“In a determination… the Commissioner denied the request for relief that Ms. Vera had filed in November 2016. That denial was styled as a Letter 3288, Final Appeals Determination. The header of that letter specified only 2010 as the tax year. In contrast, the substance of the determination addressed both 2010 and 2013. It read:
“For tax year 2010, the information we have shows that you didn’t\ meet the requirements for relief.

“For tax year 2010, you didn’t have a reasonable expectation that the person you filed the joint return with would or could pay the tax.

“For tax year 2013, you didn’t comply with all income tax laws for the tax years that followed the years that are the subject of your claim.” 157 T. C. 6, at p. 4.

Nilda used the Form 2 petition, and put both years on it.

“Although section 6015(e)(1)(A)(i)(I) refers to a final determination, nothing in that provision prohibits the Commissioner from issuing more than one final determination as to a given tax year. To the extent this provision might be interpreted as allowing for only one final determination, it does not specify whether it is one final determination per request for innocent spouse relief or one final determination per tax year.

“If we look to the applicable regulations to clear up this ambiguity, it is clear that the Commissioner believes that more than one final determination can be issued with respect to a single tax year. As a general matter, the regulations under section 6015 limit claimants to a single qualified request for a given year. Sec. 1.6015-1(a)(2), (h)(5), Income Tax Regs. A qualified request is defined as the ‘first timely claim for relief.’ Id. para. (h)(5). And the ‘requesting spouse is entitled to only one final administrative determination of relief.’ Sec. 1.6015-5(c)(1), Income Tax Regs. But these regulations leave open the possibility for the Commissioner to issue a second final determination. For instance, if a requesting spouse changes marital status, the regulations permit a second claim, resulting in a second final determination. Secs. 1.6015-1(h)(5), 1.6015-5(c)(1), 1.6015-3, Income Tax Regs.” 157 T. C. 5, at pp. 6-7.

And of course the whistleblower epistolary volleying is remembered.

“In the whistleblower context, we have held that successive letters that purport to be a final determination can confer on the recipient successive opportunities to file a petition. 157 T. C. 6, at p. 9. Judge Buch cites the Battling Comparinis. See my blogpost “Arts and the Man,” 10/4/14.

“In his motion to dismiss, the Commissioner characterizes the inclusion of 2013 in his determination as an error. Error or not, the Commissioner’s notice is unambiguous in its denial as to both 2010 and 2013. Although the header of the letter refers only to 2010, the body refers to both years. The description for denial of relief as to 2013 relates solely to the merits of relief. Nowhere in the letter does the Commissioner describe a rejection on the basis of an improper second request. Simply put, nothing in the Commissioner’s letter conflicts with the notion that this is a denial on the merits as to both 2010 and 2013. This leaves the Commissioner to argue that the determination was issued in error. But if we again look to our whistleblower caselaw, we have previously held that we have jurisdiction to review determinations issued in error.” 157 T. C. 6., at p. 10.

Remember Mica Ringo? No? See my blogpost “Oh, Those Letters,” 10/6/14.

There’s more, but IRS is stuck. Nilda’s determination gets her a determination, and a Tax Court review.

But oh, what a splendid silt-stir this will cause!  If late for one year, timely petition another, and load ’em both aboard.

*Nilda E Vera 157 T C 6 8 23 21

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