Attorney-at-Law

NOD OUT

In Uncategorized on 08/23/2021 at 13:36

No, not what happens when one sits in an endless Zoom meeting that drones on to oblivion. This is about what happens when a Notice of Determination is invalid. And that’s the story of Guadalupe Ruiz & Maria C. Ruiz, Docket No. 21277-18L, filed 8/23/21*.

Guadalupe & Maria C. petitioned a NOD. Appeals issued a supplemental NOD, but somewhere in between Guadalupe died. Judge Courtney D. (“CD”) Jones told IRS to report.

“…in response to the Court’s order, respondent filed a status report representing that the IRS never issued Mrs. Ruiz a Notice CP90, Intent to Seize Your Assets and Notice of Your Right to a Hearing. As such, respondent’s counsel contends that the notice of determination sent to Mrs. Ruiz was not a valid notice of determination. Accordingly, respondent represented that respondent would file a motion to dismiss for lack of jurisdiction as to Mrs. Ruiz.” Order, at p. 2.

And IRS tried to find who might represent the estate of the late Guadalupe.

Well, pore l’il ol’ Tax Court is a court of limited jurisdiction, so no valid NOD, no jurisdiction, right?

Not quite. “Although the Office of Appeals’ determination need not follow a particular format, the determination must be in writing. A notice of determination ‘must specify to which taxable period, liability, and collection action it relates or, at least provide sufficient information so that the taxpayer cannot reasonably be deceived as to these items”. LG Kendrick, LLC v. Commissioner, 146 T.C. 17, 28-29 (2016) (citing Commissioner v. Forest Glen Creamery Co., 98 F.2d 968, 971 (7th Cir.1938), rev’g and remanding 33 B.T.A. 564 (1935); Erickson v.  Commissioner, T.C. Memo.1991–97, 61 T.C.M. (CCH) 2073, 2076–2077 (1991)). For the backstory on LG Kendrick, see my blogpost “Be Careful What You Ask For – Part Deux,” 1/21/16.

So just maybe there might be jurisdiction as to Maria C., because there was a NOD specifying whatever NODs are supposed to specify. That Appeals had no jurisdiction, invalidating the NOD, because Maria C. never got the CP 90, is another story.  So let IRS’ counsel report on that angle.

There is Tax Court caselaw that says it can kick the underlying levy notice if it was improperly served. Take a look at the Order, at pp. 3-4. Although 7 Cir weighs in to state that determining IRS didn’t follow statutory requirements is “a quintessential merits analysis, not a jurisdictional ruling,” 7 Cir tossed the taxpayer in that case, saying if NOD invalid, like the Man From Mumbai said, “The door is shut…we may not look behind.” See Adolphson, 843 F.3D 478 (CA 7, 2016).

Judge CD Jones notes Adolphson is up in the air in Tax Court, as the Atlantic Pacific Management case (for which see my blogpost “The Taxpayer Bill of Goods – Part Deux,” 6/20/19) never dealt with Adolphson.

Taishoff says, anyway, the late Guadalupe & Maria C. were TX residents when they petitioned, and TX is 5 Cir, not 7 Cir.

But Judge CD Jones is the judge here, not me, so let IRS decompose some brain tissue.

Meantime, TX law does let Maria C. take up the torch for the late Guadalupe, and press ahead with her own innocent spousery. Texas Estates Code sec. 453.003.

So let IRS’ counsel discuss TX estate law, Maria C.’s innocent spousery, and maybe whether Tax Court has no jurisdiction at all.

And let the Clerk change the caption to “Guadalupe Ruiz, Deceased, Maria C. Ruiz, Surviving Spouse, & Maria C. Ruiz, Petitioners, v. Commissioner of Internal Revenue, Respondent.” Order, at p. 4.

*Guadalupe Ruiz & Maria C. 8 23 21

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