A. Asterino Starcher, 2021 T. C. Memo. 144, filed 12/30/21*, didn’t petition the SNOD from the SFR for the year she never filed. She did petition the NITL, claiming her expenses would offset her income. She got the usual pre-hearing letter, but sent in nothing.

Came the telephonic CDP hearing.

” …petitioner joined the telephone conference as scheduled. She stated that she wished to submit a delinquent return for 2014 that would replace the SFR and reduce her tax liability. The SO explained that she could not dispute her underlying liability at the CDP hearing because she had failed to petition this Court in response to the notice of deficiency that the IRS sent her…. Petitioner confirmed that she had received the notice of deficiency. The SO nevertheless offered to look at a proposed 2014 return if submitted to him by August 7, 2020. He reminded petitioner that she needed to supply financial information by the same date if she desired consideration of a collection alternative.” 2021 T. C. Memo. 144, at pp. 3-4.

“The SO never received any financial information necessary for considering a collection alternative. He did receive from petitioner, on September 3, 2020, a delinquent … tax return, which he forwarded to a different IRS office.” 2021 T. C. Memo. 1445, at p. 4. Wherepuon, the SO confirmed the NITL.

A. Asterino asks why she can’t contest her liability, since the SO was willing to look at her (belated) return.

Judge Albert G (“Scholar Al”) Lauber eschews psychoanalyzing the SO.

” Petitioner notes that the SO offered to let her submit a delinquent return…. Why, she asks, would the SO have done this if he was unable to address her tax liability for that year? The record does not clearly establish the SO’s reasoning; one possibility is that he was considering whether petitioner’s… tax year could be submitted for audit reconsideration. But the SO’s thinking on this point is not important to our analysis. The only question of legal relevance is whether petitioner had a previous opportunity to challenge her … liability.” 2021 T. C. Memo. 144, at p. 6, footnote omitted.

No SO can consider liability if there was a previous opportunity to contest (the “single-shot” rule, per Section 6330(c)(2)(B)). Any such consideration forms no part of a NOD and may not be judicially reviewed, Reg Section 301.6330-1(e)(3), Q&A-E11.

All of which bears out the old trusim: most CDPs are lost long before they ever get to Tax Court.

*A Asterino Starcher 2021 T C Memo 144 12 30 21