Attorney-at-Law

DON’T DEBATE, ABATE

In Uncategorized on 01/10/2022 at 15:06

That’s Judge David Gustafson’s word to IRS, when they conspicuously failed to do so in Wendell C. Robinson & May T. Jung-Robinson, Docket No. 6446-19L, filed 1/10/21. But don’t fault IRS too badly; true, they issued an erroneous CP22A, and CP24, and blew the abatement on a CP11, but Wendell’s & May’s returns for the two (count ’em, two) years at issue were proof of my oft-repeated statement that lawyers can’t add. Wendell can’t even follow instructions, although he is admitted to practice in United States Tax Court, Transcript, at p. 5.

I’m sure my fellow-admittees will howl if I even suggest it, but maybe Tax Court should require CLE.

Yes, I’ve yelled long and loud about the CLE racket, and I abate not one jot or cliché thereof. And yes, I once made the same mistake as Wendell, putting my 1040-es on the wrong line of our 1040 one year, which took months to straighten out. But just read Judge Gustafson’s opinion; Wendell & May cooked up quite a frittata, aided by IRS’ miscues.

My takeaway today centers upon Section 6213(b)(2)(A). In a math or clerical error automatic, IRS must give notice to the taxpayer of the amount of the mistake, and the reason why it is a mistake. The taxpayer then has sixty (count ’em, sixty) days to give IRS “… a request for an abatement of any assessment specified in such notice, and upon receipt of such request, the Secretary shall abate the assessment. Any reassessment of the tax with respect to which an abatement is made under this subparagraph shall be subject to the deficiency procedures prescribed by this subchapter.” Transcript, at p. 24. Judge Gustafson stresses the “shall.”

Though Wendell & May sent written notice to IRS nine (count ’em, nine) days after the CP11, IRS never abated the assessed error amounts. On the trial, “(T)he Commissioner contends that the Robinsons’ letter was not a request for abatement because it did not expressly (in the language of the statute) ‘request’ an ‘abatement.’ However, we are satisfied that, even without the statutory terminology, their letter qualifies as a request for abatement. The Robinsons plainly indicated their lack of acquiescence, requested information substantiating the IRS’s assertions, demanded to know why their own calculations were not correct, and asked that the related interest and additions to tax be ‘stayed.'” Transcript, at p. 33.

After going through the legislative history and the IRS Manuals, both for the year at issue and the present, Judge Gustafson delivers a comment worthy of a Taishoff “Standing Ovation.”

“The constituency for section 6213(b)(2) is not the Section of Taxation of the American Bar Association;  it is the taxpayer who has made an arguable mathematical or clerical error on his return. When the IRS notifies a taxpayer of such an error, it does not provide him with a form or publication telling him how to ‘request an abatement.’ That being so, the IRS sensibly advises its employees that it will abate tax even in response to an oral request. Much more should it abate when a taxpayer returns the math error notification and objects in writing.” Transcript, at pp. 35-36. (Emphasis by the Court).

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