Springer CA10-Can't appeal CDPH w/o notice of determination

[jcolvin2]

http://www.ca10.uscourts.gov/opinions/10/10-9001.pdf

*Edited to correct misspelling in subject line.

[LPC]

I don't know that I'm comfortable with the idea that the IRS can deny someone any CDP hearing whatsoever and the courts will then have no jurisdiction to review the refusal.

It seems to me that the refusal to grant a hearing could/should be considered a "determination" subject to review.

(I've run into a similar attitude/problem in my own practice. On a couple of occasions, I've had difficulty getting the Register of Wills to accept a petition and, when I've suggested that I might appeal to the Orphans' Court, the response from the Register's office has been that I can only appeal an "action" by the Register of Wills, not a refusal to act. I simply can't believe that I can appeal the *denial* of a petition but can't appeal the *refusal* to accept a petition.)

Anyway, I would have affirmed the Tax Court on the grounds that the request for the CDPH was untimely, not on the grounds that there was no "determination." The Tax Court has no jurisdiction either way, and a "determination" by inaction seems to me to be as reasonable as a "hearing" in which the taxpayer is never heard.

[jcolvin2]

I don't know that I'm comfortable with the idea that the IRS can deny someone any CDP hearing whatsoever and the courts will then have no jurisdiction to review the refusal.

It seems to me that the refusal to grant a hearing could/should be considered a "determination" subject to review.

***
Anyway, I would have affirmed the Tax Court on the grounds that the request for the CDPH was untimely, not on the grounds that there was no "determination." The Tax Court has no jurisdiction either way, and a "determination" by inaction seems to me to be as reasonable as a "hearing" in which the taxpayer is never heard.

The opinion indicates that Springer already received a "determination" related to his "collection due process hearing" challenge to IRS collection for years 1990-1996 which he contested in the courts. He lost. When he received a new notice of lien for the same years, he asked for another collection due process hearing. The IRS is not required to have multiple collection due process hearings for the same years, and (quite correctly) refused to give Springer a hearing or issue a determination.

If it had been his first CDPH request for the particular taxable period, and the IRS had refused to issue a determination, it would be a very different situation

[ASITStands]

The opinion indicates that Springer already received a "determination" related to his "collection due process hearing" challenge to IRS collection for years 1990-1996 which he contested in the courts. He lost. When he received a new notice of lien for the same years, he asked for another collection due process hearing. The IRS is not required to have multiple collection due process hearings for the same years, and (quite correctly) refused to give Springer a hearing or issue a determination.

If it had been his first CDPH request for the particular taxable period, and the IRS had refused to issue a determination, it would be a very different situation

Springer had already received a determination for a "levy action" not a "lien action."

The first notice of tax lien was sent to the wrong address, and not the last known address, though he was not able to convince tax court. The second notice of tax lien was sent AFTER both notices of withdrawal and release had been sent on the very same tax liabilities.

The issues were last known address and whether he had ever had an opportunity for CDP

He lost when tax court found it was bound to the jurisdiction question surrounding having received a notice of determination. The hands of tax court were in effect tied because there was no provision for review when a notice of determination was not issued.

It's one of those cracks through which an issue falls when no provision for review is made. The lien action was important as it was those liens the court foreclosed to take his home.

[LPC]

The opinion indicates that Springer already received a "determination" related to his "collection due process hearing" challenge to IRS collection for years 1990-1996 which he contested in the courts. He lost. When he received a new notice of lien for the same years, he asked for another collection due process hearing. The IRS is not required to have multiple collection due process hearings for the same years, and (quite correctly) refused to give Springer a hearing or issue a determination.

Fine.

My point is that, if the IRS can "quite correctly" refuse to provide a second due process hearing, then the courts should say that, and affirm the refusal to provide a second due process hearing, rather than dodging the issue (and perhaps creating other problems in later cases) by taking the position that the refusal to provide a hearing is not a "determination."

[Imalawman]

The opinion indicates that Springer already received a "determination" related to his "collection due process hearing" challenge to IRS collection for years 1990-1996 which he contested in the courts. He lost. When he received a new notice of lien for the same years, he asked for another collection due process hearing. The IRS is not required to have multiple collection due process hearings for the same years, and (quite correctly) refused to give Springer a hearing or issue a determination.

Fine.

My point is that, if the IRS can "quite correctly" refuse to provide a second due process hearing, then the courts should say that, and affirm the refusal to provide a second due process hearing, rather than dodging the issue (and perhaps creating other problems in later cases) by taking the position that the refusal to provide a hearing is not a "determination."

Totally agree, LPC. I'm not sure what the tax court did is actually the law. I haven't researched it, but I know I've had colleagues that have pursued an issue of proper notice for a NFTL. If I have time, I'll look around.

[LPC]

Oddly enough, the Third Circuit has issued a similar opinion based on somewhat different facts, but still the same principle.

See Heidi Hartmann v. Commissioner, No. 10-3773 (3rd Cir. 3/14/2011).

[Pantherphil]

Perhaps it is only wishful thinking, but I sense that the Courts are beginning to get extremely tired of tax fraudsters and protesters running out the clock with repeated and belated frivolous appeals. Nothing frustrates me as much as seeing cases up on appeal involving assessments that are over 10 years old still being contested in collection. If IRS has to afford a CDPH hearing anytime it proposes to take an enforced collection action and the taxpayer gets an opportunity to run out the appellate process, there will never be an end to it. Seems to me that the rule should be one CDPH to a customer.

[Duke2Earl]

I guess to some folks it is a victory of sorts if you can go 10 or more years without having to pay up.... that is, assuming they have assets to pay with anyway. Of course, to do that you have to make going to court pro se and filing silly papers into almost a full time job. But if you do have assets, interest is still running no matter how long you delay.

Normal people feel quite differently. Recently I had a client accept a settlement offer that I thought wasn't good enough. The government had real significant hazards of litigation in the case and I really thought that I could negotiate a better deal. But the client just wanted to settle it and put it behind them... so they did.

[ASITStands]

The opinion indicates that Springer already received a "determination" related to his "collection due process hearing" challenge to IRS collection for years 1990-1996 which he contested in the courts. He lost. When he received a new notice of lien for the same years, he asked for another collection due process hearing. The IRS is not required to have multiple collection due process hearings for the same years, and (quite correctly) refused to give Springer a hearing or issue a determination.

Fine.

My point is that, if the IRS can "quite correctly" refuse to provide a second due process hearing, then the courts should say that, and affirm the refusal to provide a second due process hearing, rather than dodging the issue (and perhaps creating other problems in later cases) by taking the position that the refusal to provide a hearing is not a "determination."

Totally agree, LPC. I'm not sure what the tax court did is actually the law. I haven't researched it, but I know I've had colleagues that have pursued an issue of proper notice for a NFTL. If I have time, I'll look around.

I think there's some misunderstanding. (Maybe not.)

For any particular tax year for which an assessment has been made, there are two possible collection actions: (1) a lien action triggered by a notice of tax lien and (2) a levy action triggered by a final notice of intent to levy. Both allow a CDP hearing with Appeals.

Tax Court can only gain jurisdiction in a collection action when a petition is filed after a notice of determination has been filed after a CDP hearing. No notice of determination, and whether the taxpayer files a petition or not, tax court does not have jurisdiction.

See 26 U.S.C. § 6330(d) and Orum V . Commissioner, 123 T.C. 1 (2004), pg. 11:

This Court’s jurisdiction under section 6330 depends upon the issuance of a valid determination letter and the filing of a timely petition for review. Sec. 6330(d)(1); Lunsford v. Commissioner, 117 T.C. 159, 164 (2001).

See also Sarrell v.. Commissioner , 117T .C . ;.122, 125 (2001), pg.5:

When the Appeals Office issues a determination letter to a taxpayer following an administrative hearing regarding a notice of intent to levy, section 6330(d)(1) provides that the taxpayer will have 30 days following the issuance of such determination letter to file a petition for review with the Tax Court or, if the Tax Court does not have jurisdiction over the underlying tax liability, with a Federal District Court. See Offiler v. Commissioner, 114 T.C. 492, 498 (2000). We have held that this Court’s jurisdiction under sections 6320 and 6330 depends upon the issuance of a valid determination letter and the filing of a timely petition for review. See Moorhous v. Commissioner, 116 T.C. 263, 269 (2001); Offiler v. Commissioner, supra at 498; see also Rule 330(b).

You get the picture. Both cases were quoted in the Springer decision.

So, two things that may not be clear: (1) there are two possible collection actions, and (2) tax court has no jurisdiction in collection actions without a notice of determination.

In Springer, the issue was "last known address" and whether he had ever had an opportunity for collection due process from an earlier notice of tax lien sent to a wrong address.

In the Tenth Circuit Order, it states:

Mr. Springer does not dispute that his September 2008 request for a CDP hearing was denied and that no notice of determination was issued. Instead, he argues that the IRS did not mail the August 2008 notice of federal tax lien to his “last known address,” relying on three cases in which the issue was whether the IRS mailed a notice to the taxpayer’s “last known address.”

The problem is that there were two notices of tax lien: (1) the first sent April, 1999 to the wrong address and (2) a second sent August, 2008. The first was sent to an address not the "last known address" and used 30-days prior to the notice and 30-days after.

The issue for Springer was whether a notice of tax lien sent to a wrong address constituted sufficient due process to warrant reducing the lien to foreclosure, and the issue for tax court was whether it had jurisdiction without a proper CDP hearing and notice of determination.

Springer was unable to convince tax court he had a right to due process.

[Lambkin]

I guess to some folks it is a victory of sorts if you can go 10 or more years without having to pay up.... that is, assuming they have assets to pay with anyway. Of course, to do that you have to make going to court pro se and filing silly papers into almost a full time job.

Or more than a full-time job: it obviously consumes work time, leisure time, family time, etc. (Not counting the various other possible penalties such as loss of home or property, divorce, incarceration, etc. which would probably make it a losing venture entirely.) If he applied half of that effort to mowing lawns his quality of life would probably go up.