In Uncategorized on 11/14/2022 at 13:15

The latest silt-stir, equitable tolling, is rolling on. Today Judge Goeke has to consider whether equitable tolling applies to a late Letter 12153 request for a CDP on a NFTL, as well as the petition from a CDP.

See my blogpost “Toll the Lien and Save the House,” 5/13/20, in the last sentence of which I raised that same question.

Organic Cannabis Foundation, LLC, Docket No. 381-22L, filed 11/14/22, raises the question after its other attempts to slide under the “day late and dollar short” barrier thrown up by IRS. There are three (count ’em, three) years at issue. The NFTL for Year Three was issued after that for Years One and Two; the Organ Pipesmokers were clearly timely for Years One and Two, got a NOD, and timely petitioned same. They were a day late for Year Three, but all three were heard together. Appeals issued a single NOD denying all, but the heading of the NOD indicated Year Three as “EH,” equivalent hearing, the IRM-created consolation from which there is no review by Tax Court. The rest of Appeals’ paperwork is sketchy; see Order at pp. 2-3. However, Judge Goeke salvages enough to knock out the Organ Pipesmokers.

Appeals can hear both Tax Court-reviewable years and non-reviewables together. Tax Court can look behind the ambiguous NOD for jurisdiction, and if it finds the Letter 12153 was late, reject that year. Although the Organ Pipesmokers claim the NOD is valid on its face, Judge Goeke looks at all the paperwork that came with the NOD, and finds it ambiguous.

I’ve said it so many times: Any lawyer who can’t find an ambiguity should find another way to make a living.

So on to equitable tolling.

“Petitioner argues that the 30-day period for a CDP hearing request is subject to equitable tolling under the principles set forth in Boechler, P.C. v. Commissioner,  142 S. Ct. 1493, 1497 (2022). In Boechler, the Supreme Court held that the 30-day period to file a petition with the Court for review of a CDP determination in section 6330(d)(1) is a nonjurisdictional deadline subject to equitable tolling. Respondent argues that Boechler does not apply. Boechler did not expressly address the 30-day period for requesting a CDP hearing. However, the Court believes that the concepts discussed therein may equally apply to the 30-day period for submitting a CDP hearing request. Accordingly, we will provide petitioner with an opportunity to respond to the arguments raised by respondent in his Response with respect to whether the doctrine of equitable tolling should apply to administrative hearing requests, including the statutory provisions creating a taxpayer’s right to a hearing summarized below, the Treasury regulations that establish equivalent hearings, and caselaw that has construed the 30-day period as a fixed deadline.” Order, at p. 7.

The Organ Pipesmokers have been late before, but that was pre-Boechler; see my blogpost “Katie, Bar the Door,” 7/25/17.

Alas, because the new, improved, jim-handy (yeah, right, roger that) DAWSON website won’t let me get a printable docket wherewith to find out the identity of the Organ Pipesmokers’ trusty attorney, I can’t give her/him a Taishoff “Good Job” by name. So I ask him/her to let the will stand for the deed.

Edited to add, 11/17/22: Although the Genius Baristas’ efforts, if any, to post a printable docket sheet for this case have yet to succeed, I managed to locate Christian Speck, Esq., the petitioner’s trusty attorney, so I can now give him his Taishoff “Good Job” by name.


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