Attorney-at-Law

PATCHING DOESN’T COVER – PART DEUX

In Uncategorized on 11/30/2022 at 18:12

Thus I remarked ten (count ’em, ten) years ago. Today Judge Ronald L. (“Ingenuity”) Buch unloads six (count ’em, six) IRS webposts, of which he takes judicial notice. After having noticed, and recounted the post-handoff bobble by AO M. (name omitted), who took the case from AO S. (name omitted), who hadn’t been able to get to her office because COVID, Judge Buch bucks Ryan Michael Sterling, Docket No. 10995-21L, filed 11/30/22, back to Appeals in an off-the-bencher..

Ryan was another victim of the midyear fall from ACA grace when a pay raise or other good fortune lifts the lucky winner above the 400% of poverty limit, causing the APTA cutoff. Since Ryan Michael’s pickup of the overage was a self reported, he never got a SNOD, so he could challenge liability as the CDP he got after IRS gave him a NITL.

But his “no fair” argument wasn’t raised at the telephonic hearing, and even if it had been, “we apply the law as written.” Transcript, at p. 11.

So Ryan Michael is out, right?

No. Because AO S was locked out of her office, whence Ryan Michael had mailed the Form 433-A and supporting documents in support of his IA request, Judge Buch has the webposts to prove the lockout, and Ryan Michael was a believable witness when he swore he mailed the materials timely.

AO M. got the case from AO S. for reasons unexplained. AO M. should have followed up with Ryan Michael before issuing a NOD.

“Here, Mr. Sterling raised the issue of a collection alternative. Generally, it is not an abuse of discretion for a settlement officer to refuse to consider collection alternatives if the taxpayer failed to submit requested financial information. The settlement officer’s failure to follow up with the taxpayer regarding missing information before sustaining a collection action, however, might be considered an abuse of discretion. See, e.g., Lewis v. Commissioner, T.C. Memo. 2012–138, 103 T.C.M. (CCH) 1758, 1761.” Transcript, at p. 12.

For the story on Lewis, see my blogpost “Patching Doesn’t Cover,” 5/16/12. But here the story is worse.

” Ms. S. sent Mr. Sterling a letter scheduling a hearing and requesting collection information. Going into the telephonic hearing, Ms. S. was unaware whether Mr. Sterling had mailed the requested information because she had not been to the office. Ms. S. again requested financial information. Mr. Sterling testified that he promptly mailed the information to Ms. S. The case activity record does not show that anyone followed up with Mr. Sterling, even after his case was reassigned to a new settlement officer, Ms. M. She received the case and immediately proceeded to issue a notice of immediately determination….” Transcript, at pp. 13-14.

But the webposts prove that IRS was well aware that there were more than 2.9 million (count ’em, 2.9 million) pieces of unopened mail sitting in various IRS locations, Transcript, at p.10..

Abuse of discretion. Back to Appeals, and go find Ryan Michael’s packages.

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