Madeleine L’Engle’s 1962 young adult classic sums up the arguments of Jacob & Marsha Rozbruch, Docket No. 16739-19L, filed 2/3/23. Jacob & Marsha claim Appeals abused its discretion by not confining its review on remand to the financial information Jacob & Marsha submitted four (count ’em, four) years earlier. Judge David Gustafson remanded with an order to reconsider Jacob s’ & Marsha’s claim of CNC “taking into account all of petitioners’ income, expenses, assets, and liabilities as reported by petitioners in their supporting financial documentation.” Order, at p. 5.

Jacob & Marsha had settled a bunch deficiencies and TFRPs (hi, Judge Holmes) with DOJ, but those aren’t in play, except for a now-expired wage garnishment. They had run up an additional $700K of deficiencies and TFRPs, but submitted no new financials, claimng the old stuff was all Appeals could consider.

Judge David Gustafson is extremely well-bred.

“Our remand order can be construed to instruct IRS Appeals to include in its consideration the Rozbruchs’ information ‘as [previously] reported’—but it cannot reasonably be construed to allow consideration of only that previous information. Our instruction was to ‘take[] into account’ that information in the process of  ‘reconsider[ing] petitioners’ financial circumstances.’ Assuming that there might sometimes be an occasion in which, in a remand order, the Court has the discretion to confine IRS Appeals to an existing record, we did not so confine IRS Appeals here;  and it would have been very odd to do so in this situation. The relief that the Rozbruchs request is the status of ‘currently not collectible’; but the remand as they conceive it would have the IRS determine whether to forestall collection (and would have the Court review that determination) on the basis of a showing that they were not collectible four years ago—i.e., to determine not that they are currently not collectible but that they were previously not collectible. Of course, financial information in a CDP hearing can never be up to the minute, but a four-year lag would undermine the logic of CNC.” Order, at p. 11.

CNC means currently not collectible. That status applies at the moment, based upon the current state of financial affairs. Summary J for IRS.

Jacob’s & Marsha’s trusty attorney is an alumnus of The Jersey Boys, whose never-say-die attitude I’ve chronicled here before.