| Robert Clarkson (864) 225-3061 email | Nelson Waller (864) 225-0882 |
| Robert Clarkson only suggests options and explains possible consequences. You must make your own decisions. The PN does not control or manage any case. As a pro se litigant, you must do that yourself. |
Hearing: Merriam-Webster's Dictionary of Law C1996.
1: a proceeding of relative formality at which evidence and arguments may be presented
on the matter at issue to be decided by a person or body having decision-making
authority (compare trial) |
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From CDPH Handbook by IRS iii. Offers of collection alternatives c. Section 6330(c)(2)(B) liability challenges Sections 6320(c) and 6330(c)(2)(B) provide that a taxpayer may challenge the existence or amount of the underlying tax liability at the hearing if the taxpayer did not receive a statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability. The term "underlying tax liability" means the amount of a taxpayer�s liability for tax under the Internal Revenue Code for a particular taxable year. If a taxpayer is precluded by section 6320(c) or 6330(c)(2)(B) from challenging his or her liability in a CDP hearing, he or she is also precluded from doing so in the judicial review proceeding under section 6330(d). Goza v. Commissioner, 114 T.C. 176 (2000). This preclusive effect does not define the scope of the reviewing court�s jurisdiction but defines only when a taxpayer can challenge his or her liability. Van Fossen v. Commissioner, T.C. Memo. 2000-163. Section 6330(c)(2)(B) does not apply to claims for spousal relief under section 66 or 6015, because these claims do not dispute the existence of the liability, but rather seek relief from the liability. Treas. Reg. �� 301.6320-1(e)(3)Q&A-E3, 301.6330-1(e)(3)Q&A-E3. i. Receipt of a statutory notice of deficiency Receipt of a statutory notice of deficiency means receipt in time to petition the Tax Court for a redetermination of the deficiency. Treas. Reg. �� 301.6320-1(e)(3)Q&A-E2, 301.6330-1(e)(3)Q&A-E2. In CDP cases, respondent has the burden of proving by a preponderance of the evidence that the receipt requirement has been satisfied. Sego v. Commissioner, 114 T.C. 604 (2000). However, respondent may rely on the presumptions of official regularity and delivery or circumstantial evidence in order to prove receipt under section 17 6320(c) or 6330(c)(2)(B). Sego v. Commissioner, 114 T.C. 604 (2000); Carey v. Commissioner, T.C. Memo. 2002-209. (A) Presumptions of official regularity and delivery Unless respondent can show by direct evidence that the taxpayer actually received the deficiency notice or refused its delivery (see, e.g., Baxter v. Commissioner, T.C. Memo. 2001-300), he will have to rely on the presumptions of official regularity and delivery to satisfy the requirements of section 6330(c)(2)(B). If the notice of deficiency has been properly mailed, the presumptions of official regularity and delivery arise so that it is presumed the notice was sent and attempts to deliver were made in the manner contended by respondent. Sego v. Commissioner, 114 T.C. 604 (2000); Carey v. Commissioner, T.C. Memo. 2002-209. For the presumptions of official regularity and delivery to arise in the CDP context, respondent must show that the statutory notice of deficiency has been sent by certified mail to petitioner�s last known address. Sego v. Commissioner, 114 T.C. 604 (2000). Such proof should be accomplished by presenting a copy of the statutory notice and a certified copy of USPS Form 3877, certified mail list. Id., citing Pietanza v. Commissioner, 92 T.C. 729 (1989); see also Magazine v. Commissioner, 89 T.C. 321 (1987). The USPS Form 3877 must be stamped or initialed by the Post Office. Cf. Massie v. Commissioner, T.C. Memo. 1995-173. The presumption of delivery includes the presumption that the Postal Service attempted delivery of the certified mail to petitioner. Carey v. Commissioner, T.C. Memo. 2002-209. (B) Rebuttal of presumptions Once the presumptions of official regularity and delivery arise, the burden is on the taxpayer to prove non-receipt. The presumptions are rebutted if the certified mail is returned as undeliverable. In addition, the presumptions can be rebutted by credible testimony. Cf. Nunley v. City of Los Angeles, 52 F.3d 792, 796-797 (9th Cir. 1995). However, the presumptions are not rebutted by testimony denying receipt where sufficient contrary evidence exists that the taxpayer refused to accept delivery of the notice of deficiency. Sego v. Commissioner, 114 T.C. 604 (2000); Carey v. Commissioner, T.C. Memo. 2002-209. The presumptions are also not rebutted where the taxpayer admits receiving the USPS Form 3849 but fails to pick up the certified mail. See Baxter v. Commissioner, T.C. Memo. 2001-300. (C) Frivolous challenges to liability The section 6330(c)(2)(B) preclusion issue should be conceded if the taxpayer is only making frivolous arguments to challenge their 18 liabilities and proof of receipt of the statutory notice of deficiency will be difficult. Under such circumstances, defeating the frivolous challenge will be easier than proving receipt. EXPLANATION BY ROBERT B. CLARKSON The IRS must have proof that you received the 90 day letter, plus the notice and demand letter. One of their favorite tricks to deny your due process rights is to send important notices to an incorrect address purposely and knowingly. Since you do not receive the notice, you cannot comply with the statutory mandates and thereby unknowingly waive your constitutional right to due process of law. Below is a link to a post office form for you to hand to the IRS agent to fill out. They should file the form with the post office to track the allegedly mailed item. The IRS must send the NOD and 90 day letters by registered or certified mail, with a Return Receipt Requested (the green card). If you receive the NOD and sign for it, they must preserve this documentary evidence and they must produce this evidence (or proof) to you upon your request. The burden of proof is on them. If the IRS does not produce the postal confirmation that you received these notices, they must halt the collection activity and start over with a new 90 day letter. This is an important procedural right for you which you can use to your advantage. However the agents may claim they sent it to you registered mail, therefore give the IRS agent the tracking form (see link below) to fill in to substantiate their claim. Tell them to "file a claim with the post office because we didn't get it." Domestic Claim or Registered Mail Inquiry Click link and print. You will also have precedent on your side because you will have responded to anything and everything else they may have sent you--even if it has arrived in your possession after being wrongly addressed. |
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The Code of Federal Regulations (CFR) requires that the IRS furnish to you (maybe as part of CDPH) upon request a copy of the record of assessment. Therefore add to your letters and petitions the following paragraph. "I hereby request a copy of the record of assessment with the requirements of 26CFR part 301.6230-1, which states: If the taxpayer requesets a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period and the amount assessed." |
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On January 25, 2005, the U.S. Court of Appeals for the Second Circuit held that taxpayers cannot be compelled by the IRS to turn over personal and private property to the IRS, absent a federal court order. Quoting from the decision (Schulz v. IRS, Case No. 04-0196-cv), "…absent an effort to seek enforcement through a federal court, IRS summonses apply no force to taxpayers, and no consequence whatever can befall a taxpayer who refuses, ignores, or otherwise does not comply with an IRS summons until that summons is backed by a federal court order…[a taxpayer] cannot be held in contempt, arrested, detained, or otherwise punished for refusing to comply with the original IRS summons, no matter the taxpayer's reasons, or lack of reasons for so refusing." Writing for the three-judge panel, Judge Straub wrote, in part: "…The government has moved to amend our per curiam opinion, reported at Schulz v. IRS., 395 F.3d 463 (2nd Cir. 2005) ("Schulz I")… Having considered the arguments of the parties, we grant the petition to rehear for only the limited purpose and to the extent necessary to clarify our prior opinion and hold that: 1) absent an effort to seek enforcement through a federal court, IRS summonses "to appear, to testify, or to produce books, papers, records, or other data," 26 U.S.C. Section 7604, issued "under the internal revenue law, " id., apply no force to the target, and no punitive consequences can befall a summoned party who refuses, ignores, or otherwise does not comply with an IRS summons until that summons is backed by a federal court order; 2) if the IRS seeks enforcement of a summons through the federal courts, those subject to the proposed order must be given a reasonable opportunity to contest the government�s request; 3) if a federal court grants a government request for an order of enforcement then any individual subject to that order must be given a reasonable opportunity to comply and cannot be held in contempt or subjected to indictment under 26 U.S.C. section 7210 for refusing to comply with the original, unenforced IRS summons, no matter the taxpayer�s reasons or lack of reasons for so refusing." [page 3]. Soundly rejecting the government�s view of Congress�s tax enforcement scheme as "Draconian," the Court said: "…the government appears to argue alternatively, or in combination, that: 1) the government may use the federal courts to punish taxpayers who disobey an IRS summons even if the summons is never enforced by court order; 2) if an IRS summons is enforced by a court order, the court may punish disobedience of the IRS summons before providing the taxpayer an opportunity to comply with the court�s order; or 3) if an IRS summons is enforced by a court order, the court may punish disobedience of the IRS summons even if the taxpayer complies with the court�s order. In our view, expressed in Schulz I, none of these proposals is consistent with the comprehensive tax-enforcement scheme in which 26 U.S.C. sections 7210, 7604(a) and 7604(b) are situated, constitutional due process, or the relevant precedents of this Court and the United States Supreme Court…" [ page 5]. Trumpeting the primary role of the Judiciary of protecting the People from unconstitutional acts of the other two branches of the government, the Court went on to say: "…the IRS summons is administratively issued but its enforcement is only by federal court authority in an adversary proceeding affording the opportunity for challenge and complete protection to the witness." [page 9] (emphasis in the original). Most significantly, the Court held, relying on a 1920 decision by the United States Supreme Court, that the principles of due process apply to all administrative orders. We take that to mean the Court�s order applies not only to IRS first party summonses, but also to IRS third party summonses, and to IRS levies and liens. In what may be the most significant sentence in the 13-page decision, the court stated: "The rule of due process upon which we relied in Schulz I, and upon which we rely now, can be stated thus; any legislative scheme that denies subjects an opportunity to seek judicial review of administrative orders except by refusing to comply, and so put themselves in immediate jeopardy of possible penalties �so heavy as to prohibit resort to that remedy,� Oklahoma Operating Co. v. Love, 252 U.S. 331, 333 (1920), runs afoul of the due process requirements of the Fifth and Fourteenth Amendments." [Page 10]. Although the objects in contention in Schulz were IRS administrative summonses, it is unavoidable that the Due Process issues raised and articulated by the Court in Schulz have direct implication for all forms of routine IRS administrative process including liens, levies and seizures. This decision reiterates those constitutional principles. The Court's reaffirmation of Schulz I is clear: any legislative scheme that forces a taxpayer to make a "Hobson's choice" between either capitulating to an IRS administrative demand, or risk bearing the pains of IRS's wrath if she refuses to comply -- without access to judicial review, violates the Constitution. The Court granted both Schulz and the Government 45 days to file a petition for an en banc rehearing. |
The following is a quote from the IRS web site:Taxpayers have a right to be protected under due process. If the IRS finds that a taxpayer owes tax, it must follow certain guidelines in determining the tax, notifying the taxpayer of the liability, and collecting the tax. Before the IRS can begin the collection process of filing a lien on a taxpayer�s property, it must assess the liability and send the taxpayer a bill (Notice and Demand for Payment), which describes what the taxpayer owes. Only if the taxpayer neglects or refuses to pay the tax can the IRS begin collection activities. Taxpayers have a right to Appeals and Judicial Review. If a taxpayer disagrees with the IRS about the amount of the tax liability or certain collection actions, he has the right to ask the Appeals Office to review the case. The Appeals Office is separate and independent of the office that audits tax returns or is responsible for collecting what is due. The taxpayer also has the right to ask a court to review it. There are two relatively new Internal Revenue Code Sections that provide taxpayers with "Due Process" rights of appeal.
Section 6320 - Notice of Federal Tax Lien Filed Section 6320 requires the IRS to notify in writing the taxpayer against whom a "Notice of Federal Tax Lien" has been filed. The notice may be given in person, left at the taxpayer's dwelling or usual place of business, or sent to the taxpayer by certified or registered mail not more than five business days after the day the Notice of Federal Tax Lien (NFTL) was filed. The notification must state the amount of unpaid tax, the right to request a hearing during a 30-day period following the end of the five-day notification period, the administrative appeals available to the taxpayer with respect to such lien and procedures relating to such appeals, and the provisions and procedures relating to the release of liens. The taxpayer is entitled to one hearing per tax period before an Appeals officer who has had no prior involvement with respect to that tax period. (The taxpayer may waive the requirement that the Appeals officer had no prior involvement with respect to that tax period.) Hearings with respect to liens may be held in conjunction with hearings under Section 6330, involving levies. The period of limitations on collection with respect to that tax period is suspended while the hearing and any appeal of it are pending. At the hearing, the Appeals officer is required to receive verification that all legal and administrative requirements for filing the lien have been met. The taxpayer is allowed to raise any relevant issue at the hearing. Issues eligible to be raised include (but are not limited to):
Taxpayers may not raise any issue that was raised and considered at a previous hearing under section 6330 or in any other administrative or judicial proceeding if that taxpayer participated meaningfully in such prior hearing or proceeding. The taxpayer may appeal the determination of the Appeals officer in the Tax Court or a U.S. District Court within 30 days of the date of the determination. NOTE: If the original CDP request was NOT filed within the 30-day period, Appeals can give the taxpayers an "Equivalent" hearing that is essentially the same as the CDP hearing, EXCEPT that there is no right for the taxpayer to appeal the Notice of Determination issued by Appeals to the Tax Court. That is why it is very important that a taxpayer timely file his or her original CDP request within the 30-day period. Recent Tax Court Decision Regarding Challenge in CDP Hearing to Original Return Tax Liability Montgomery, (2004) 122 TC No. 1In a recent Tax Court decision, a married couple could challenge their reported tax liability in a collection due process (CDP) hearing because:
Facts. On Oct. 18, 2001, the Montgomerys filed a joint income tax return for 2000 reporting total tax of $2,831,360 and tax due of $196,006. They made no payment with their return. IRS accepted the return as filed and assessed the tax reported in it. IRS did not audit the return or issue a notice of deficiency. On Mar. 18, 2002, IRS issued a final notice of intent to levy under Code Sec. 6201(a)(1) . The Montgomery's responded by filing a request for a collection due process hearing under Code Sec. 6330 . In a July 2002 telephone conversation, their counsel informed IRS's Appeals officer that the Montgomerys had overstated the total tax on their original return for 2000 and would submit an amended return showing a refund due. On Sept. 28, 2002, before any amended return was filed, IRS issued a Final Notice of Determination in which it said that the levy could go forward because the Montgomerys had not timely submitted an amended return. On Oct. 11, they filed an amended return showing that they were due a refund of over $500,000. On Oct. 28, 2002, the Montgomerys timely filed a Tax Court petition for review of IRS's determination. Before the Tax Court, IRS moved for summary judgment on the ground that the Montgomerys couldn't challenge their tax liability at this point. Tax could be challenged. The Tax Court rejected IRS's motion. The Court concluded that Code Sec. 6330(c)(2)(B) permits the Montgomerys to challenge the existence or amount of the tax liability reported on their original tax return because they had not received a notice of deficiency and had not otherwise had an opportunity to dispute the tax liability in question. The Tax Court noted that Code Sec. 6330(c) prescribes the matters that a person may raise at a CDP hearing. Code Sec. 6330(c)(2)(A) provides that a person may raise collection issues such as spousal defenses, the appropriateness of IRS's intended collection action, and possible alternative means of collection. It also noted that Code Sec. 6330(c)(2)(B) establishes the circumstances under which a person may challenge the existence or amount of his underlying tax liability. Specifically, Code Sec. 6330(c)(2)(B) provides that the person may raise challenges to the existence or amount of the underlying tax liability for any tax period if he did not receive any statutory notice of deficiency for the tax liability or did not otherwise have an opportunity to dispute it. Accordingly, the Court held in favor of the Montgomerys. http://www.dicknorton.com/dueprocess.htm |
New Law under 6330 (b)(1)(b) Right to fair hearing (1) In general If the person requests a hearing under subsection (a)(3)(B), and states the grounds for the requested hearing, such hearing shall be held by the Internal Revenue Service Office of Appeals. |
at CDPH, ask agent if they had a verification of accuracy of the tax liability, as
required in IRM part 5-collection process; Chapter 13; section2; #2.3 iteam 21:
5.13.2.2.3 (03-26-1999)
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Not by RBC, FYI Only On Thursday August 17, 2006, the President signed into law the "Pension Protection Act of 2006." Thus, a section of that law, titled "United States Tax Court Modernization," is now in effect. There are two important changes to the laws affecting practice and procedure in the U.S. Tax Court. First, ALL collection due process appeals will soon be decided by the Tax Court. For Notices of Determination issued after October 16, 2006, no CDP appeals can be made to any U.S. District Court. Therefore, lien/levy actions involving "frivolous return" penalties, "false and fraudulent" Form W-4 penalties and the "Trust Fund Recovery Penalty" (the 100% penalty imposed on employers for failure to deduct, withhold and pay over so-called employment taxes) must be appealed to the Tax Court rather than to a District Court. The good news about this amendment is that we no longer have to fight $500 penalties under the rigid, complicated and tricky Rules of Civil Procedure and the myriad of U.S. District Court local rules. Our doing this was especially annoying if one also had an income tax related Notice of Determination that had to be appealed to the Tax Court. The bad news about the amendment is that the "wrong court" law has been repealed. The "wrong court" law said that if a CDP appeal was made to the "wrong court," e.g. if one filed a complaint in a U.S. District Court in a CDP income tax case when the proper step was to file a petition in the Tax Court, then once the "wrong court" dismissed the issue for lack of jurisdiction, the party had 30 extra days to file his papers in the "right court." We used the "wrong court" law best when the IRS simultaneously issued us separate Tax Court and District Court (usually over the "frivolous return" penalty) Notices of Determination. By timely appealing both notices to the Tax Court we were able to delay getting the frivolous return penalty CDP appeal before the District Court and stop the Tax Court from moving forward on the income tax CDP appeal (because it had to first divest itself of that part of the petition that appealed matters over which the Tax Court lacked jurisdiction). Properly used, the "wrong court" law could bog down a case for close to a year, if not longer. The good news is that another section of the law which amends Tax Court practice and procedure allows the Tax Court to use its $30 "practice fee" (not to be confused with the $60 filing fee) to "provide services for pro se taxpayers." So, if you have to petition Tax Court to stall an IRS collection action, you should liberally avail yourself of the Tax Court's "pro se services." If you do, and you do it right, you should be able to prevent the Tax Court for some time from moving to final resolution of your case. You can find the "United States Tax Court Modernization" law within the "Pension Protection Act of 2006" at Title VIII, Subtitle E, sections 851-860. The two laws I discussed above can be found within sections 855 (Jurisdiction of Tax Court Over Collection Due Process Cases) and 860 (Expanded Use of Tax Court Practice Fee for Pro Se Taxpayers). Please get the word out about these important Tax Court practice and procedure amendments...and use them wisely! |
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Mrs. Ima Citizen
To Clerk of Court Re: Citizen vs. CIR, docket # _______ Dear Clerk of Court; Please find enclosed my petition to the tax court to appeal a Notice of Determination, denying my CDPH. I request permission to file my petition in forma pauperis. I request that the filing fees be waived due to my indigence. I am not gainfully employed. I own no real-estate or any properties. I have no investments, no assets, no stocks and bonds, and no savings account. I have no IRAs, pensions or retirement accounts. I do not own anything and I do not have enough money to pay my bills. Therefore, I request that the filing fees be waived. Yours,
___________________ |
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In house CDPH: You are entitled to a face
to face collection hearing. Do not let them deny to your statutory right.
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November 10, 2003
I have enclosed a copy of this letter for your files. My counsel has advised, and
I agree, that conducting this hearing by phone will not "adequately" meet
the agenda of my hearing for all the obvious reasons. A hearing by phone is unacceptable
for the date you assigned or at any other date in the future. |
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e) Matters considered at CDP hearing: ( 1) In general. Appeals has the authority to determine the validity, sufficiency, and timeliness of any CDP Notice given by the IRS and of any request for a CDP hearing that is made by a taxpayer. Prior to the issuance of a determinaton, the hearing officer is required to obtain verification from the IRS office collecting the tax or filing the NFTL that the requirements of any applicable law or administrative procedure have been met. The taxpayer may raise any relevant issue relating to the unpaid tax at the hearing, including appropriate spousal defenses, challenges to the appropriateness of the NFTL filing, and offers of collection alternatives. The taxpayer also may raise challenges to the existence or amount of the tax liability specified on the CDP Notice for any tax period shown on the CDP Notice if the taxpayer did not receive a statutory notice of deficiency for that tax liability or did not otherwise have an opportunity to dispute that tax liability. Finally, the taxpayer may not raise an issue that was raised and considered at a previous CDP hearing under section 6330 or in any other previous administrative or judicial proceeding if the taxpayer participated meaningfully in such hearing or proceeding. Taxpayers will be expected to provide all relevant information requested by Appeals, including financial statements, for its consideration of the facts and issues involved in the hearing. (2) Spousal defenses. A taxpayer may raise any appropriate spousal defenses at a CDP hearing. To claim a spousal defense under section 6015, the taxpayer must do so in writing according to rules prescribed by the Secretary. Spousal defenses raised under section 6015 in a CDP hearing are governed in all respects by the provisions of section 6015 and the procedures prescribed by the Secretary thereunder. |
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This article is not written by Robert Clarkson and is for informational purposes only. From VH:... here's an excerpt from a brief I wrote on the "last known address" in relation to a NOD. Remember, the last known address is also a requirement for the notice sent pursuant to Section 6303(a). The consequence of not mailing that notice within 60-days of the assessment to the last known address is that the IRS loses its administrative collection powers. The IRS usually sends the 6303 notice to the same address it sent the NOD.Here's the excerpt for a NODbrief: Since the IRS failed to send the statutory notices of deficiency for the tax periods 1991, 1992, 1993, and 1994, a valid assessment does not exist as a matter of law, and the tax liens recorded against the undersigned are invalid. The undersigned was denied procedural due process including the opportunity of petitioning the United States Tax Court. The Tax Court may exercise its jurisdiction only when the IRS issues a valid notice of deficiency, and the taxpayer files a timely petition for redetermination. See 26 U.S.C. Section 6213(a); Jones v. C.I.R. , 79 A.F.T.R.2d 355, 1996 U.S. App. LEXIS 33598, *2 (9th Cir. 1996); Adams v. Commissioner , 68 T.C.M. 291, 1994 Tax Ct. Memo LEXIS 377, *8 (1994). A valid petition is the basis of the Tax Court's jurisdiction, and to be valid, a petition must be filed from a valid statutory notice. Scar v. C.I.R. , 814 F.2d 1363, 1366 (9th Cir. 1987); Stamm International Corp. v. Commissioner , 84 T.C. 248, 252 (1985); Midland Mortgage Co. v. Commissioner , 73 T.C. 902, 907 (1980). "Thus, a valid notice of deficiency and a timely petition are essential to [Tax Court] deficiency jurisdiction and [the Court] must dismiss any case in which one or the other is not present." Monge v. Commissioner , 93 T.C. 22, 27 (1989); Pietanza v. Commissioner , 92 T.C. 729, 735 (1989) (same); Pyo v. Commissioner , 83 T.C. 626, 632 (1984) (same). The failure of the e IRS to comply with statutory requirements renders the deficiency notice null and void and leaves nothing on which Tax Court jurisdiction can rest. Sanderling Inc. v. Commissioner , 571 F.2d 174, 176 (3rd Cir. 1978). Further, an improperly mailed statutory notice of deficiency not sent to the "last known address" is without legal effect. Monge , 93 T.C. at 29-30. The proper mailing of the notice of deficiency to a taxpayer's last known address is a statutory prerequisite to a valid notice. Sections 6212 and 6213; King v. Commissioner , 857 F.2d 676, 681 (9th Cir. 1988) (under I.R.C. sec. 6212(b), validity of the notice turns on whether the IRS used the last known address when the notice was mailed); Mall v. Kelly , 564 F.Supp. 371 (D.Wyo. 1983) (deficiency assessments are void where the IRS failed to meet the requirement of reasonably and diligently determining and mailing sufficient notice to taxpayers' last known address); Adams , 1994 Tax Court Memo LEXIS at *9 ("Under section 6212(b)(1), a notice of deficiency is deemed sufficient if it is mailed to the taxpayer at his or her 'last known address'"); Muller v. Commissioner , 57 T.C.M. 906, 1989 Tax Ct. memo LEXIS 337, *5 (1989) (petition must be dismissed for lack of jurisdiction if the notice of deficiency was not mailed to "last known address" or was invalid for other reasons); O'Brien v. Commissioner , 62 T.C. 543, 548 (1974) (same). The IRS documents clearly disclose that the IRS had the undersigned's correct mailing address to which it should have sent the statutory notices of deficiency. Generally, when a taxpayer desiring to use a different address than the one reported on the most recently filed return, s/he must give clear and concise written notification of the new address to the Internal Revenue Service. Clear and concise notification is most often a statement which sets forth the taxpayer's full name, new address, social security number, and is signed by the taxpayer. Cyclone Drilling, Inc. v. Kelley , 769 F.2d 662, 664 (10th Cir. 1985). In order to ascertain what facts are material to the "last known address" determination, we must first define the term "last known address" itself. The term is not defined in either the statutes or the regulations; its definition has instead been accomplished by a substantial body of case law. Fundamentally, the term [last known address] means "that address to which the IRS reasonably believes the taxpayer wishes the notice sent." United States v. Ahrens , 530 F.2d 781, 785 (8th Cir. 1976); Sorrentino v. Ross , 425 F.2d 213, 215 (5th Cir. 1970); Delman v. Commissioner of Internal Revenue , 384 F.2d 929, 932 (3d Cir. 1967), cert. denied , 390 U.S. 952 (1968). In recognition of obvious nationwide administrative realities, the burden is on the taxpayer to provide "clear and concise" notice of his current address to the IRS; the IRS is otherwise entitled to rely on the address shown on the taxpayer's tax return for the year in question. Weinroth v. Commissioner , 74 T.C. 430, 435 (198). "Clear and concise" notice is notice by which the taxpayer indicates to the IRS that he wishes the new address to replace all old addresses in subsequent communication." See Alta Sierra Vista, Inc. v. Commissioner , 62 T.C. 367, 375 (1974), aff'd mem ., 538 F.2d 334 (9th Cir. 1976). Such an indication of replacement may be either explicit or implicit; we follow the Ninth Circuit in our view that a taxpayer's subsequent tax return bearing a new address provides the IRS with "clear and concise" notice. See United States v. Zolla , 724 F.2d 808, 810 (9th Cir. 1984), cert. denied , 469 U.S. 830 (1984); Cool Fuel v. Connett , 685 F.2d 309, 312 (9th Cir. 1982); McPartlin v. Commissioner , 653 F.2d 1185, 1190 (7th Cir. 1981) (citing Ninth Circuit cases). The address on the taxpayer's most recent [return is the] last known address unless further "clear and concise" notice is provided to the IRS subsequent to the most recent return. (Verbal notification may also qualify as "clear and concise" notice. DeWelles v. United States , 378 F.2d 37, 39 (9th Cir. 1967); Cohen v. United States , 297 F.2d 760, 773 (9th Cir. 1962)). Cyclone Drilling , 769 F.2d at 764. See also Gille v. United States , 33 F.3d 46, 47 (10th Cir. 1994) ("case law has interpreted the term 'last known address' to mean that address to which the IRS reasonably believes the taxpayer wishes the notice sent"); Armstrong v. C.I.R. , 15 F.3d 970, 974 (10th Cir. 1994) (same); Guillen v. Barnes , 819 F.2d 975, 977 (10th Cir. 1987) (same); Howell v. United States , 92-1 U.S.T.C. P50,061, 1991 U.S. Dist. LEXIS 17338, *4 (D.Kansas 1991) (same); Lightsey v. C.I.R. , 70 T.C.M. 431, 1995 Tax Ct. Memo LEXIS 394, *10 (1995) ("we have held that a taxpayer's last known address is the address shown on the taxpayer's most recently filed tax return, absent clear and concise notice of a change of address."); United States v. Rode , 89-2 U.S.T.C. P9640, 1989 U.S. Dist. LEXIS 14303, *3-4 (W.D.Mich. 1989) (The courts have defined "last known address" as the taxpayer's "last permanent address or legal residence known by the Commissioner or the last temporary address of a definite duration to which the taxpayer has directed the Commissioner to send all communications."); Adam v. C.I.R. , 68 T.C.M. 291, 1994 Tax Ct. Memo LEXIS 377, *9 (1994) (the relevant inquiry becomes the IRS' knowledge of the address to which a notice should be sent); Martin v. C.I.R. , 64 T.C.M. 1529, 1992 Tax Ct. Memo LEXIS 757, *9-10 (1992) ("In order to supplant the address on his or her most recent return, the taxpayer must clearly indicate that the former address is no longer to be used."). Further, the last known address "is an address to which the [IRS] in all the circumstances may reasonably believe the taxpayers wish the notices sent." Gille , 33 F.3d at 47-48; Gaw v. Commissioner , 45 F.3d 461, 465 (D.C.Cir. 1995); William v. Commissioner , 935 F.2d 1066, 1067 (9th Cir. 1991); Eschweiler v. United States , 946 F.2d 45, 48 (7th Cir. 1991); Berger v. Commissioner , 404 F.2d 668, 671 (3rd Cir. 1968); United States v. Shafer , 96-1 U.S.T.C. P50,258, 1996 U.S. Dist. LEXIS 5616, *9-12 (E.D.Pa. 1996). Although the general rule in determining what the IRS may reasonably believe is that the last known address for a taxpayer is the address on his or her most recent tax return filed with the IRS, unless the taxpayer sends the IRS "clear and concise" notice of a change of address, the courts have also held that if the IRS through reasonable diligence should have discovered that the address for the taxpayer had changed since the filing of the most recent return, the Service cannot satisfy the statutory requirements by simply mailing the notice to the address on the most recent return. Gille , 33 F.3d at 47-48; Gaw , 45 F.3d at 465; Williams , 935 F.2d at 1067; Shafer , 1996 U.S. Dist. LEXIS 5616, *11-15. For example, in the Gaw case, Gaw sent a letter to the IRS making it aware that he would be departing to Burma for approximately a one year stay. The letterhead contained his Hong Kong home address of 43A Stubbs Road. Gaw subsequently retained Peter Edwards of the Hong Kong law firm of Johnson Stokes & Master, but he did not file a power of attorney with the IRS to this effect. On January 16, 1991, Johnson Stokes sent a registered letter to an Agent Chan, which Chan received but again did not answer. This letter referred Agent Chan to the December 18th letter in which Mr. Gaw requested that any documents which it was necessary to serve upon him should be sent to him at his Hong Kong address. Johnson Stokes' letter the informed Agent Chan that Mr. Gaw requested that Chan forward to them copies of any papers or documents which he wishes to serve upon Gaw. The letter stated that Johnson Stokes would make sure that Mr. Gaw receives such copies on his next return to Hong Kong. On June 5, 1991, the IRS received a certified letter from Mr. Gaw, which again bore the Hong Kong address. Mr. Gaw stated that he had waited in Hong Kong until January 26, 1991 for a response from the IRS to his December 18, 1990 letter, but he had not received a response. This letter informed Agent Chan that Gaw would be stationing in his native country, Burma, from then until June, 1992. The IRS determined that it should send Gaw a notice of deficiency for the three tax years under review. The notice was sent on October 8, 1991. The IRS sent the notice by certified mail to a Hillsborough, California address that the Gaws had used on their 1988 joint return, and also by registered mail to the Gaws' Hong Kong address, which the Gaws had used on their 1989 joint return. The IRS did not send copies to either Johnson Stokes or to Sammy Chan, the Gaws' accountant and power of attorney. On appeal United States relied on the technical requirements of the last known address rule, arguing that the IRS sent the notice to the address that Mr. Gaw's December 18th letter had expressly indicated was his proper address for official communications, an address that the Johnson Stokes' letter of January 16th acknowledged was the Gaws' "registered address for U.S. tax purposes." The D.C. Circuit held that the "IRS should have contacted Johnson Stokes to inform it that the IRS would not provide it with copies of the deficiency notice unless the firm submitted a power of attorney. In light of the IRS' failure to take this simple step, we find clearly erroneous the Tax Court's conclusion that the IRS exercised reasonable diligence." Gaw , 45 F.3d at 466. "The IRS ignored clear information in its administrative file regarding the whereabouts of the Gaws and made no effort to ensure that any actual communication occurred with either the Gaws or their representatives." Id . at 468. The Gaw Court held that " the equitable obligation to use reasonable diligence ... is distinct from and supplementary to the statutory obligation imposed by the last known address requirements of section 6212." Id . An assessment in violation of Section 6213(a) is void, and any tax lien or attempts to collect an invalid assessment are actionable in court. Robinson v. United States , 920 F.2d 1157, 1158 (3rd Cir. 1990) (the notice of deficiency is a pivotal feature of the Code's assessment procedures, because it serves as a prerequisite to a valid assessment by the IRS) 0 ; Hanley v. C.I.R. , 1992 U.S. App. LEXIS 32728, *2 n. 1 (1st Cir. 1992) (same); Holif v. Commissioner , 872 F.2d 50, 53 (3rd Cir. 1989) (same); Ball , 326 F.2d at 901 ("The validity of the tax lien to serve as a basis for the judgment granted here depends upon whether the notice requirements of 6212(a) were met, because 26 U.S.C.A. 6321 and 6322, which create tax liens, require, inter alia , a valid assessment"); Goldston v. United States , 97-1 U.S.T.C. 50,148 (D.Kansas 1995) ("If an assessment is void, the IRS is prohibited from proceeding administratively..."); Luhring v. Glotzbach , 62-1 U.S.T.C. P9132, 1961 U.S. Dist. LEXIS 5695, *3 (E.D.Va. 1961) ("It would seem to be well settled that the statutory notice under Section 6212 is a prerequisite to a valid assessment, and the failure of the Director to mail such notice to the 'last known address' of the taxpayer would be sufficient grounds for injunctive relief in this Court."); Schreck v. United States , 301 F.Supp. 1265, 1268 (D.Maryland 1969) ("Reduced to essentials, section 6213(a) makes injunctive relief available against the assessment, levy or collection of a tax when the IRS does not send to the taxpayer a deficiency notice as required by the tax laws."). Section 6213(a) of the Internal Revenue Code is clear that "no assessment of a deficiency ... and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer...."). See also Laing v. United States , 423 U.S. 161, 184 n. 27 (1975) (Section 7421(a) does not forbid suits to enjoin the assessment of a deficiency, or a levy or proceeding in court for its collection, if the taxpayer has not been mailed a notice of deficiency and afforded an opportunity to secure a final Tax Court determination. See Section 6213(a)). The Tenth Circuit in Guthrie v. Sawyer , 970 F.2d 733 (10th Cir. 1992), extensively examined the provisions of 26 U.S.C. Section 6213(a). The Court held that Section 6213(a) of the Act specifically authorizes an injunction, without demonstrating the normal prerequisites for injunctive relief, prohibiting an assessment or levy when the taxpayer has not received a notice of deficiency. Id . at 735. As set out above, the statutory exception to the Anti-Injunction Act provided by I.R.C. 6213(a) specifically authorizes an injunction prohibiting an assessment or levy when the taxpayer has not received a deficiency notice. ... Whether a taxpayer must show the lack of a remedy at law to invoke the statutory exception to the Anti-Injunction Act is an issue on which the circuits are split. (Cite omitted). One leading commentator has stated that "section 6213 does not require a showing of irreparable injury as a prerequisite to injunctive relief." J. Mertens, Jr., Mertens Law of Federal Income Taxation 49E.39 (1991). This position appears to us to be the better view. The purpose of the statutory exception is to preserve the taxpayer's right to litigate his tax liability in Tax Court before paying the tax. If the availability of a refund suit after payment prohibits the taxpayer from obtaining an injunction to protect his right to litigate first, that right is virtually meaningless. Under this approach, this right would be available only upon a showing that the taxpayer could not pay the tax. We have difficulty believing that Congress intended to give with one hand and take back with the other. ... The failure to receive a notice of deficiency is grounds for injunctive relief because lack of the notice prevents the taxpayer from going to Tax Court. ... In sum, we hold that a taxpayer may obtain injunctive relief under section 6213(a) based on the failure to receive a deficiency notice notwithstanding the availability of a refund suit . Guthrie , 970 F.2d at 736-737. See also Cyclone Drilling, Inc. v. Kelley , 769 F.2d 662, 663 (10th Cir. 1985) ("the taxpayer would be entitled to an injunction if the court were to find that the IRS did not send a Notice of Deficiency to the taxpayer's 'last known address'); Heun v. Williams , 864 F.Supp. 169 (W.D.Okla. 1994) (same); Martinez v. IRS , 96-2 U.S.T.C. P50,515, 1996 U.S. Dist. LEXIS 10638 (E.D.La. 1996) (same); Philadelphia & Reading Corp. v. United States , 944 F.2d 1063, 1073, 1078 (3d Cir. 1991) ("an assessment that precedes a notice of deficiency is forever void and illegal"; all funds collected pursuant to a void and illegal assessment by the IRS must be returned to Plaintiff); Conway v. United States , 903 F.Supp. 1409, 1411 (D.Colo. 1995) ("because I have concluded that the IRS assessment is void, the plaintiff is entitled to a refund of that payment toward the assessment"); Spears v. United States , 143 Bankr. 950, 1992 U.S. Dist. LEXIS 3203 (N.D.Okla. 1992) (same). In Russell v. United States , 774 F.Supp. 1210, 1216 (W.D.Mo. 1991), David and Jacklyn Russell did not contest the fact that t hey never paid the disputed tax liability. Instead, the Russells argued that United States was barred from collecting these taxes (and accompanying interest), because the IRS failed to issue statutory notices of deficiency for two of the tax years at issue. The Russell Court held that the failure to issue statutory notices of deficiency nullified the assessment and IRS' levies, and that United States must refund the funds to the Russells. Before the IRS can assess a deficiency, 26 U.S.C. Section 6213(a) directs the IRS to issue the taxpayer a statutory notice of deficiency. See also Treas. Reg. Section 301.6213_1(a) (as amended 1986); U.S. v. Zolla , 724 F.2d 808, 810 (9th Cir.), cert. denied , 469 U.S. 830, 105 S. Ct. 116, 83 L. Ed. 2d 59 (1984); U.S. v. Eisenhardt , 437 F. Supp. 247, 248 (D. Md. 1977). The purpose of the notice of deficiency is two-fold: 1) a notice to taxpayers that the IRS intends to assess a tax deficiency, and 2) a jurisdictional prerequisite to filing a petition for redetermination of the deficiency in the Tax Court. Kennedy v. U.S. , 403 F. Supp. 619, 622 (W. D. Mich. 1975), aff'd , 556 F.2d 581 (6th Cir. 1977). Russell , 774 F.Supp. at 1214. The IRS' failure to issue the statutory notices within the statute of limitations nullifies the assessments levied and permanently bars the IRS from assessing plaintiffs for the alleged tax deficiencies. 26 U.S.C. Section 6213(a); Treas. Reg. Section 301.6213_1(a). That being the case, judgment shall be entered on behalf of the plaintiffs as a matter of law. ... [United States] shall direct the IRS to refund $ 18,732.00, plus interest, to the plaintiffs. |
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The following is a partial page from IRB 1999-7. To see the entire bulletin, click here. page 21 Q-A11. What are the consequences if the taxpayer does not receive or accept a CDP Notice that is properly left at the taxpayer�s dwelling or usual place of business, or sent by certified or registered mail to the taxpayer�s last known address? A-A11. ACDP Notice properly sent by certified or registered mail to the taxpayer�s last known address or left at the taxpayer�s dwelling or usual place of business is sufficient to start the 30-day period that commences the day after the end of the five business day notification period within which the taxpayer may request a CDP hearing. Actual receipt is not a prerequisite to the validity of the notice. Q-A12. What if the taxpayer does not receive the CDP Notice because the IRS did not send that notice by certified or registered mail to the taxpayer�s last known address, or failed to leave it at the dwelling or usual place of business of the taxpayer, and the taxpayer fails to request a CDP hearing with Appeals within the 30-day period commencing the day after the end of the five business day notification period? A-A12. A NFTL becomes effective upon filing. The validity and priority of a NFTL is not conditioned on notification to the taxpayer pursuant to section 6320. Therefore, the failure to notify the taxpayer concerning the filing of a NFTL does not affect the validity or priority of the NFTL. When the IRS determines that it failed properly to provide a taxpayer with a CDP Notice, it will promptly provide the taxpayer with a substitute CDP Notice and an opportunity to request a CDP hearing. Q-E2. When is a taxpayer entitled to challenge the existence or amount of the tax liability specified in the CDP Notice? A-E2. A taxpayer is entitled to challenge the existence or amount of the tax liability specified in the CDP Notice if the taxpayer did not receive a statutory notice of deficiency for such liability or did not otherwise have an opportunity to dispute such liability. Receipt of a statutory notice of deficiency for this purpose means receipt in time to petition the Tax Court for a redetermination of the deficiency asserted in the notice of deficiency. An opportunity to dispute a liability includes a prior opportunity for a conference with Appeals that was offered either before or after the assessment of the liability. p. 25 Example 2. Same facts as in Example 1, except the taxpayer does not receive the notice of deficiency in time to petition the Tax Court. The taxpayer is not, therefore, precluded from challenging the existence or amount of the tax liability in a subsequent CDP hearing Page 29 states: "Challenges to the existence or amount of the tax liability specified in the CDP Notice may be raised only if the taxpayer did not receive a statutory notice of deficiency for such liability or did not otherwise have an opportunity to dispute such liability." |
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The Umbrella of the Due Process Clause of the US Constitution, 5th and 14th amendments 1. Plaintiffs seek judicial review of the IRS tax assessment under the due process clause of the United States Constitution. No government agency can take any action against any citizen absent judicial intervention. Government agents are not allowed into people's homes or people's pocketbooks without review by the independent judiciary. 2. The seizure actions of virtually all other federal agencies are subject to judicial review. A hearing must be held prior to the agency seizing someone's property. In Fuentes v. Shevin , 407 U.S. 67, 80, 96-97 (1972), the U.S. Supreme Court recognized "the right to a prior opportunity to be heard before chattels are taken from their possessor." The appellees do not suggest that these [contractual] provisions waived the appellants' right to a full post-seizure hearing to determine whether those events had, in fact, occurred and to consider any other available defenses. By the same token, the language of the purported waiver provisions did not waive the appellants' constitutional right to a pre-seizure hearing of some kind...We hold that the Florida and Pennsylvania prejudgment replevin provisions work a deprivation of property without due process of law insofar as they deny the right to a prior opportunity to be heard before chattels are taken from their possessor...Since the essential reason for the requirement of a prior hearing is to prevent unfair and mistaken deprivations of property, however, it is axiomatic that the hearing must provide a real test. "[D]ue process is afforded only by the kinds of `notice' and `hearing' that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property...." Sniadach v. Family Finance Corp ., at 343 (Harlan, J., concurring). See Bell v. Burson , at 540; Goldberg v. Kelly , at 267. 3. In Sniadach v. Family Fin. Corp. of Bay View , 395 U.S. 337, 342 (1969), the U.S. Supreme Court addressed "the issue of whether a post-seizure hearing is meaningful in terms of due process and deciding that a pre-deprivation notice and opportunity to be heard is necessary absent an important governmental or public interest to the contrary" under specific circumstances. 4. Recent investigations of the problem have disclosed the grave injustices made possible by prejudgment garnishment whereby the sole opportunity to be heard comes after the taking [as noted by Congressman Sullivan, Chairman of the House Subcommittee on Consumer Affairs who held extensive hearings on this and related problems]...Thus, the U.S. Supreme Court ruled that where the taking of one's property is so obvious[, egregious, and sinister in effect], it needs no extended argument to conclude that absent notice and a prior hearing (cf. Coe v. Armour Fertilizer Works , 237 U.S. 413, 423) this prejudgment garnishment procedure violates the fundamental principles of due process. 5. Until Schulz II , supra the IRS has been able to conduct seizures without judicial review. The recent ruling changed how the IRS must comply with judicial review, including how it conducts CDH hearings. Now the IRS also is finally constrained by the "fundamental principles of due process" and its seizure attempts are subject to review by the independent judiciary in order to protect the rights of citizens. 6. In conclusion, Petitioners request independent judicial review of IRS's enforcement actions. The courts have a long string of cases requiring a judicial intervention under the due process clause before state action against a citizen. Therefore this court should schedule a hearing to review or scrutinize the intended IRS police state activities. Wherefore petitioners request relief requested herein above. _________________ John Patriot |
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The law itself, IRC section 6330(e), provides for a District Court to issue an injunction in a premature collection of income tax case. That section explicitly limits the Tax Court's authority to issue an injunction to only those cases in which a timely petition has been filed. In all other cases, including premature collection actions, one's recourse lies in a district court. I have no clue as to how you think you are responsible for this section of law. As for "verification" and "burden of proof" in CDP, the Appeals Office interprets this as simply a Form 4340 and states that you have the burden of proving an abuse of discretion. The Team Manager signs the Notices of Determination because neither Settlement Officers nor Appeals Officers are authorized to do so. It is possible, however, to win on an "non-impartial officer or employee" argument by showing that the Team Manager himself was previously involved in a prior (non-CDP) case. I am in the process of winning such a case in Florida. In the Florida case, my guy beat the IRS in a war of motions to dismiss. He had filed a Tax Court petition in response to a Decision Letter after having had an "Equivalent Hearing." The IRS moved to dismiss the case in Tax Court on a lack of jurisdiction ground because my guy had filed a late CDP request (which he had, after a levy of his wages). In turn, though, my guy filed his own motion to dismiss on the ground that the Final Notice of Intent to Levy was not sent by certified mail/return receipt requested to his "last known address." The Tax Court judge sided with my guy and dismissed the case for lack of a valid Final Notice. Subsequently, the IRS reissued the Final Notice of Intent to Levy and held a CDP hearing. Much to our surprise, however, the same Appeals Team Manager (ATM) who signed his previous Decision Letter involving the dismissed case also signed his Notice of Determination. We are about to move for dismissal/summary judgment on the ground that my guy did not consent to the ATM's involvement in the CDP case after his prior involvement in the "equivalent hearing" case. Although "equivalent hearings" were contemplated by the legislative history of section 6330, that section does not explicitly recognize them. As such, the ATM had a prior involvement in the case which my guy did not waive. Therefore, the Notice of Determination is invalid. The IRM provides that Appeals will normally "obtain verification" as it deems proper; yet, if the taxpayer raises a specific verification challenge, Appeals is required to address that specific challenge. Remember, at all times in your CDP cases, such "verification" IS REQUIRED to come from "the IRS office collecting the tax," i.e. the IRS office mentioned in the Final Notice or NFTL. Invariably, however, Appeals simply requisitions a Form 4340 from the IRS office in which it is located. If this happens, then you can, as I have, beat them on this issue regardless of what the "verification" purports to be. It is where the verification comes from that is the controlling issue. Exploit it, and you will win CDP cases with amazing regularity.EB |
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Leonard T. Provenzale March 7, 2007 Letter of Confirmation Mr. Provenzale, This is a letter of confirmation with regard to statements made on our telephone conversation of Thursday, March 1, 2007 at approximately 9:15 AM. Several days prior to that conversation, you had called me and left a message stating that you wanted to speak with me. I returned your call that day leaving a message for you to call me back.The following morning, you called back and stated that you were ready to Motion the Tax Court to remand my case, Docket No. 25833-06L, back to the IRS Appeals Division but you hadn�t done so because, according to the Tax Court, they had not received my $60 filing fee. I stated that the $60 fee was paid by check and that it had been taken out of my checking account.At that point, you stated that you would remand the case back and asked me if I wanted that or did I want to be adversarial. You also stated that the sanctions and fees I requested in my Motion for Summary Judgment and Reply to Answer, dated February 23, 2007 were ridiculous. I then stated that I would seek advise from legal counsel and call back with an answer in a couple of days. Telephone Conversation of Thursday, March 1, 2007 At approximately 9:15 AM, I called you and stated that in your Answer to Petition for Lien or Levy Action under Code Section 6320 (c) or 6330 (d), as Supplemented filed with the Tax Court on February 9, 2007, you admitted that there were numerous errors and inaccuracies in the Notice of Determination dated November 20, 2006 and that they had me mixed up with some other person. You stated that you agreed with me and, obviously in response to my Motion for Summary Judgment and Reply to Answer, that is why you wanted to Motion the Tax Court to remand this case back to the IRS Appeals Division. You then stated that you still had no confirmation that the Tax Court had received my $60 filing fee. At this point, I stated that the fee was paid by check and was drawn out of my checking account and that I could provide proof that the fee was paid. I stated that the Notice of Determination�s numerous errors and inaccuracies constituted harassment. You stated, again, that you agreed with the errors and inaccuracies in the Notice of Determination but not harassment. I stated I would agree to a Motion to remand the case to the IRS Appeals Division with $5000 in sanctions and fees. You then stated that�s ridiculous and I�m not going to give you any money. I then stated that I am prepared to go as far as I have too. You stated that�s fine and hung up. That was the end of the phone conversation. Mr. Provenzale, in the Notice of Determination, which I received, dated November 20, 2006, a portion of the last paragraph on Page 2 states:"Before you decide whether to petition this notice of determination, you should know that the Tax Court is empowered to impose monetary sanctions up to $25,000 for instituting or maintaining an action before it primarily for delay or for taking a position that is frivolous or groundless. Pierson v. Commissioner, 115 T.C. No. 39 (2000). . . . . If I were to have taken such a position as stated above, I could have been made liable for sanctions. Why are you then not liable? It would seem to me if sanctions can be assessed against the Petitioner then they should also be assessed against the Respondent for continuing such a poor, erroneous and blatantly inaccurate pleading before the Tax Court. With regard to the portion of this letter which directly relates to our telephone conversation of March 1, 2007, this is my true recollection of what was stated. If you disagree, I will expect a letter from you within 15 days from the date of this letter indicating what you believe not to be true and why.
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You have a case in tax court for either Tax Liability or CDPH case. Frequently you will need to talk with the agents of the enemy. Most of the time you will be eventually speaking with the IRS internal lawyer, the District Counsel; this is what you should do: 1. Be sure you are speaking to District Counsel and this telephone conversation is NOT to be considered your CDP hearing. Be very clear and specific on this. 2. Tell him you would like to record this phone call and see what he says. You can put it on speaker phone and use a regular tape recorder if he agrees. 3. Don't volunteer any information that you have not already stated in your letters. 4. If he asks for witness' names for the trial tell him they would like to remain anonymous. If he says that they'll have to be named at the hearing, tell him "we'll cross that bridge when we come to it." 5. Always ask for a continuance or postponement. These are seldom granted. 6. Always ask for a settlement out of court 7. Don't let them bully you into anything. Be firm and take charge of the conversation. If you catch them lying or if they threaten you, then you tell them you do not accept subterfuge, misrepresentation and cheap intimidation. |