In Uncategorized on 12/15/2022 at 15:53

It’s a rainy day here on this Minor Outlying Island off the Coast of North America, so I’m feeling awash with wet silt.  Wherefore, I chronicle Judge Gustafson, the master crafter of the lockout of the Hallmark Researchers’ equitable SNOD toll, who now has to deal with what ex-Ch J Maurice B (“Mighty Mo”) Foley started back in April, with Ha Tran (as to whom see my blogpost “Ya Can’t Make This Stuff Up – Part Deux,” 4/29/22).

All is not well with All Is Well Homecare Services, Inc., Docket No. 21210, 19L, filed 12/15/22. AIW got hit with a doubleheader, a NFTL and a NITL, for the same $131K in payroll taxes. AIW petitions both; everyone agrees the petition for the NITL is timely. The argy-bargy is about the timeliness of the NFTL petition.

AIW claims that the OIC they put in stays the 30-day SOL. Nope, says Judge Gustafson. “We are unaware of any authority to support the proposition that the submission of an OIC would affect the due date of a CDP request, and we cannot think of any arguable reason that it would.” Order, at p. 3, footnote 5.

AIW next claims that three (count ’em, three) days should be added to the 5 business days plus thirty days of Section 6320(a)(3)(B), to account for the time it takes the recording officer to docket and file the NFTL. That also is a nonstarter. “We do not know of any support for this 3 business days addition to the deadline.” Order, at p. 4.

IRS doesn’t move to toss; IRS moves for summary J, stating in their papers that AIW is late. AIW raises the shot-down arguments heretofore stated. Judge Gustafson parses the timeline, coming up with the conclusion that if the date IRS says was the filing date, AIW is two days late.


Judge Gustafson is under the impression that IRS prepares both NFTL and CDP notice at the same time. If that’s so, then the date of filing cannot be known then; what the IRS puts in the CDP notice is a guess.

Hence Boechler.

“…the 30-day deadline of section 6330(d)(1) is a non-jurisdictional rule subject to equitable tolling, Boechler, P.C. v. Commissioner, 142 S. Ct. 1493 (2022). A remaining question is whether Boechler should affect the application of the rule of that one has the right to request a CDP hearing during the 30-day period of section 6320(a)(3)(B). That is,  it could be argued that a taxpayer whose CDP hearing request for an NFTL is otherwise untimely might nonetheless be entitled to a CDP hearing if equitable considerations would result in the tolling of the deadline. If so, then standards or criteria should be stated by which IRS Appeals should make a decision about the appropriateness of such tolling in a given instance. There would then arise a question about the standard by which the Tax Court would review IRS Appeals’ decision whether to apply equitable tolling.” Order, at p. 5.

In English, Boechler had to do with a late petition; AIW has to do with a late Letter 12153 (CDP request). If Boechler applies to CDP requests (nudge nudge, wink wink), then how does Appeals do the sheep-and-goats number on the latecomers? And how does Tax Court review Appeals’ decision?

Is Judge Gustafson going to sort this out his own self? Nah; he has a Christmas present for IRS and AIW. Let IRS’ counsel file a supplemental memo by 1/10/23.

“…the Commissioner shall file a supplemental memorandum in support of his motion for summary judgment (and, if it would better reflect his position, a motion to dismiss) that shall discuss the matters raised in this order and shall confirm or correct the statements we have made here. In particular, that memorandum shall include a statement of the Commissioner’s position as to (1) the proper means for calculating a deadline under section 6320(a)(3)(B), (2) the date on which the NFTL was actually filed as a matter of fact, and the information supporting that fact, (3) whether the deadline of section 6320(a)(3)(B) is subject to equitable tolling, and if so, (4) the standards IRS Appeals should use in determining whether tolling applies in a given case and the standard by which the Tax Court should review such a determination by IRS Appeals.” Order, at p. 5.

And AIW gets until 2/17/23 to reply with their own version.

What a punt!


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