In Uncategorized on 07/11/2022 at 12:57

We’ve had it “always ding, dinging” in our ears to return phonecalls promptly, even before the NY Chief Judge’s Civility Rules. And far be it from me to condone, much less advocate, doing anything else.

But That Obliging Jurist Judge David Gustafson is willing to extend some leeway to an SO, at least to the extent of not deeming it an abuse of discretion, not to return a phonecall. Here’s the Candace Hellyar and Stephen Hellyar, Docket No. 12791-20L, filed 7/11/22, story.

“The crux of the Hellyars’ opposition to the Commissioner’s motion is that ‘SO R did not respond to Mr. Heller’s voicemail message [left July 14, 2020]. Instead, she closed the case’ without any further communication when she issued the notice of communication [sic; I think you meant “Notice of Determination” Judge} two and a half months later on September 30, 2020. It may be that a ‘best practice’ would always be to return every phone call, but we cannot say that the SO’s failure to do so in this instance constituted an abuse of discretion.  The CDP hearing is an opportunity for the delinquent taxpayer to request forbearance by the IRS in its discharge of its obligation to collect taxes that are due.  The taxpayer does not always fulfill his role in that hearing simply by trying to return a call and then leaving it to IRS Appeals to initiate further communication. IRS Appeals had given due consideration to the Hellyars’ 4% OIC and had, in the absence of any specific proposal by the Hellyars, made its own proposal of an installment agreement to which it would agree. It was then incumbent on the Hellyars to make a substantive response to IRS Appeals’ proposal. Instead, they simply left a voicemail message that (as the Hellyars describe it) ‘request[ed] an opportunity to discuss the appeal’. This may have been a reasonable first step. But when that communication stalled and IRS Appeals did not reply, the Hellyars were not entitled to sit back for weeks on end, leaving it to IRS Appeals to move the matter forward. IRS Appeals had already given its suggestion of the way forward—i.e., the installment agreement it had proposed. The ball was in the Hellyars’ court, not IRS Appeals’s. It was not an abuse of discretion for IRS Appeals to determine after the passage of two more months that the Hellyars would not be accepting the proposal of an installment agreement nor making a counter-proposal.” Order, at p. 6. (Name omitted).

Return phonecalls. Follow up when the other side does not. Document every effort to communicate. And tell ’em the Hellyars sent ya.

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