Important Law Review article on CDPH

Whatever it takes to prolong the process and generate issues for appeal. These law review articles certainly aren't written from our perspective. In a couple of years at the current rate, there will be no CDP.

       What I liked best in the article was the following language:

       "Katz and similar cases demonstrate how the courts have found meaningful CDP hearings took place even when the communications between the Service and taxpayer were very informal. Although the court notes that hearings "at the Appeals level have historically been conducted in an informal setting," n94 telephone conversations discussing the taxpayer's options are beyond what Congress intended a hearing to be.

       Unlike an in-person CDP hearing, it is unclear from the opinion whether the taxpayer was aware that his phone conversations would be considered his hearing; the Service admits that it only "considered petitioner's arguments, to the extent that the petitioner put them forth in telephone conversations . . . and through written correspondence." n95 It is doubtful that this level of informality enables the taxpayer to offer his arguments and to challenge the Service's three-part determination.

       Congress laid out a specific scheme for achieving due process: filing an NFTL, explaining rights to the taxpayer, and providing a meaningful hearing. The type of due process inherent in formal, in-person hearings is greater than that of "equivalent" written and oral communications. In short, a hearing by telephone is intrinsically not the same, nor does it offer the same fundamental protections as an in-person hearing. Even if these hearings are equivalent, the taxpayer's phone calls were not sufficient to constitute a CDP hearing. As a result, the rights Congress imbued taxpayers with have been abrogated." [Emphases added.]

       It also was interesting that the article writer unequivocally expressed support for an individual's right at a CDP hearing to examine witnesses and subpoena documents.

Pamela Kesner, Note, Determining the Meaning of a Meaningful Collection Due Process Hearing, 54 Tax Law 823, 830 (2001) (arguing that "Congress intended CDP hearings to provide due process to taxpayers" and "for taxpayers to receive a meaningful collection due process hearing pursuant to the Code, taxpayers should be afforded conventional due process protections, such as the right to examine witnesses or subpoena documents").