Once again, I take the title of today’s online drama from the long-running Britcom from Grace Brothers department store. Alberto Garcia, Jr., 164 T. C. 8, filed 5/19/25, says he never was, but IRS claims they have a 2014 default judgment in USDCSDTX.

Judge Emin (“Eminent”) Toro denies IRS’ motion for summary J, saying it’s a fact question whether Al Jr., was served in the TX litigation. If not, USDCSDTX had no jurisdiction, and SOL has run (apparently fraud not on the menu) on the $129K plus of Al Jr.’s alleged tax debt.

OK, so let’s have a trial.

But wait. No SND or NOD alleged. Al Jr. claims Section 7345 passport grab without substantial tax delinquency. His argument is that the defective USDCSDTX judgment is not legally enforceable, hence IRS out under Section 7345(b)(1).

“To resolve the Motion, we must decide a question that we have until now found unnecessary to answer in passport cases: What is the scope of our review or, put differently, on what evidence do we determine whether the Commissioner’s certification that a seriously delinquent tax debt exists is correct?” 164 T. C. 8, at pp. 3-4. (Footnote omitted, but it cites a bunch cases (hi, Judge Holmes) that I’ve blogged that say it wasn’t necessary before now.

All previous passport grabs were record-rulers.

Here, the NFTLs and NITLs are north of 15 (count ’em, 15) years old. Al Jr, filed a CDP on only one, and that CDP concluded north of 15 years ago. The one more recent assessment and NFTL was for $44, but that’s too small to figure in here. 164 T. C. 8, at p. 5, footnote 5.

After Al Jr.’s pro bono calendar callers first raised the non-service, Al Jr. retained counsel who said he would go to USDCSDTX, but apparently hasn’t gotten anywhere so far.

All previous Tax Court passport grabs were on uncontested facts. So mox nix whether record rule abuse of discretion or de novo is the standard of review, same result. But here the facts are in dispute.

The Van Bemmelen diss of summary J isn’t at issue here. Passport grabs essentially go off on Rule 122(a) agreed-facts; at least up to now.

All but one of the Section 7345(b) elements for seriously delinquent tax debt have been checked. That one is “legally enforceable.” And since SOL has run on everything but the USDCSDTX judgment (20 years), the seriously delinquent tax debt stands or falls on the validity (or otherwise) thereof.

Now pore l’l  ol’ Tax Court’s circumscribed jurisdiction only allows Judge Eminent and his equally eminent colleagues to decide the validity of IRS’ certification. If the amount of liability has been assessed, Tax Court cannot look behind to see if it had been properly assessed. That should have been hashed out in a deficiency case. NFTLs and NITLs should have been resolved at a CDP.

“At a minimum, however, the phrase ‘legally enforceable’ requires an inquiry into whether the limitations period for collection after assessment has expired with respect to all or part of the liability. See Ruesch, 154 T.C. at 296 (‘We are also authorized to consider whether the tax debt “has been fully satisfied or has become legally unenforceable.” Sec. 7345(c)(2)(A). The latter would be true where the collection period of limitations had expired. See sec. 6502(a).’; see also Adams, 160 T.C. at 12 (‘[A]lthough our opinion in Ruesch was deprived of its precedential effect, it has not lost its persuasive value.’).” 164 T. C. 8, at p. 10. 2 Cir dismissed appeal of Ruesch as moot when IRS folded and undid the grab.

For Ruesch, see my blogpost “Ruesch to Judgment,” 6/26/20. For Adams, see my blogpost “Section 7345 – Backdoor CDP?” 1/24/23.

Now 28 USC §3001, the Federal Debt Collection Procedures Act, has been interpreted by 9 Cir to set no limit on enforcing a Federal judgment for a Federal debt, and 5 Cir has said “amen” in an unpublished opinion. But IRS has only asserted 20 years here, so Judge Eminent ducks Federal debt collection SOL. But here, says Taishoff, be dragons.

Judge Eminent goes with somber reasoning and copious citation of precedent going back to at least 1818 that a judgment obtained without personal jurisdiction over a party is void as against the unserved party. Y’all learned that in first-year law school Procedure 101.

IRS does have a 1931 case where Tax Court’s mama, the Board of Tax Appeals, held that a petitioner could not collaterally attack a USDC judgment in Tax Court. But that case involved someone who was admittedly served but claimed that service didn’t rope in his wholly-owned corporation. Here, Al Jr, was never served at all, he says.

The APA limitation on agency review to record rule is a default rule. Judge Eminent reviews redetermination SND jurisdiction, contrasting it with Section 7623 whistleblowing record-ruling, innocent spousery pre-Section 6015 (e)(7) review de novo, and CDP record-ruling.  

 Section 7345(b) requires Tax Court to determine legal enforceability, not just to “review” the certification. The magic word is “determination.”

“…we take Congress’s choice to refer to our task as “determin[ing] whether the certification was erroneous” to mean that (where necessary) we must make that determination based on a record developed in this Court, including (where appropriate) any evidence introduced at a trial, not simply the record available to the Commissioner during the administrative process.” 164 T. C. 8, at p. 19. (Footnote omitted.)

Anyway, there haven’t been any cases like this before, and in the ten (count ’em, ten) years since Tax Court got Section 7345 cases they’ve all gone off on record rule.

Go try the case.

Taishoff says, if Al Jr, wins in Tax Court, can that determination do any more than void the passport grab?  What is the preclusive effect of such win, if any, as against IRS in USDCSDTX? Did IRS’ concession of the unlimited USFDCPA SOL set a precedent? Fortunately, this case is a one-off.