charles j. weiss, petitioner-appellant v. commissioner...

ORAL ARGUMENT NOT YET SCHEDULED

No. 16-1407

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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Charles J. Weiss, Petitioner-Appellant v.

Commissioner of Internal Revenue Service, Respondent-Appellee ---------------------

On Appeal from the United States Tax Court

Docket No. 013643-11 L

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APPELLANT’S OPENING BRIEF

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Scott MacPherson 8338 N. 50th Drive Glendale, AZ 85302 310-773-2042 [email protected] Attorney for Appellant

USCA Case #16-1407 Document #1712974 Filed: 01/16/2018 of 137

TABLE OF CONTENTS

TABLE OF AUTHORITIES i

I. JURISDICTION 1

II. ISSUES 1

1. AS AN ISSUE OF FIRST IMPRESSION UNDER 26 U.S.C. §6330-WHEN A CDP NOTICE IS MAILED ON A DATE DIFFERENT THAN THE DATE ON THE NOTICE, WITHOUT DISCLOSING THE MAILING DATE, WHEN DOES THE 30-DAY PERIOD MEASURING TIMELINESS OF A HEARING REQUEST COMMENCE?

2. WERE FINDINGS ESSENTIAL TO THE TAX COURT’S DECISION CLEARLY ERRONEOUS?

3. AS AN ISSUE OF FIRST IMPRESSION-DID APPELLEE ABUSE HIS DISCRETION IN FAILING TO PROVIDE THE REQUISITE VERIFICATION UNDER 26 U.S.C. §6330(c)(1)?

4. WAS THE CDP NOTICE DEFECTIVE, AND THUS A NULLITY?

5. IS THE IRS ESTOPPED FROM ASSERTING THE UNDISCLOSED MAIL DATE OF THE CDP NOTICE STARTED THE 30-DAY PERIOD UNDER 26 U.S.C. §6330 AND/OR THAT APPELLANT THEREAFTER PERFECTED A TIMELY HEARING REQUEST?

III. PERTINENT STATUTES AND REGULATIONS 1

IV. STATEMENT OF CASE 1

V. FACTS 2


VI. SUMMARY OF ARGUMENT 12

VII. STANDARD OF REVIEW 13

VIII. ARGUMENT 13

A. WHEN A CDP NOTICE IS MAILED ON A DATE 13 DIFFERENT THAN THE DATE ON THE NOTICE, WITHOUT DISCLOSING THE MAILING DATE, THE DATE ON THE NOTICE STARTS THE 30-DAY PERIOD UNDER §6330.

1. Section 6330(a)(3)(B) Demonstrates Congressional 14 Intent That Taxpayers Rely On The Notice Date.

2. Treasury Regulations Require Reliance On The Notice Date. 17

a. Pertinent Regulatory Language Unambiguously Refers 17 To The Notice Date.

b. Assuming The Regulation Is Ambiguous, Appellee’s 20 Interpretation Is Entitled To Auer Deference.

3. The Tax Court Disregarded Established Rules of 23 Statutory Interpretation, Including The Rule That Doubt Be Resolved In Taxpayers’ Favor. Moreover, The Court Cited Case Law Requiring The Notice’s Date Be Deemed The Mail Date.

B. FINDINGS ESSENTIAL TO THE TAX COURT’S 26 DECISION ARE CLEARLY ERRONEOUS AND KEY FINDINGS WERE OMITTED.

1. Standard of Review 26

2. Finding That Appellant Intended a CDPH 26

a. Actual Timeliness is the Only Factor Relevant 26 to Whether a F12153 Obtains a CDPH or EH


b. Actual Timeliness is the Only Factor Relevant 27 to Whether the SOL is Suspended

c. Both Sides Agreed An Untimely F12153 Results In 28 An EH

d. Assuming Intent Is Relevant, if Appellant Intended an 29 Untimely F12153, He Could not Have Intended a CDPH.

e. The Tax Court Omitted Necessary Findings Regarding 29 Appellant’s Intent to Act Timely or Untimely and Whether He Actually Acted Timely or Untimely Based on the Date He Had For the 30-Day Period.

f. Based on the Information Appellant Had, His 31 Hearing Request Was Untimely and Intended to be Untimely.

g. Facts Relied Upon by the Court are Not Inconsistent 32 with Intent to Request an EH and are Negated by Evidence That Appellant Intended To and Did Act Untimely.

(1) Failure to Check the EH Box on F12153 (Opinion, pp. 9, 30) 32

(2) Appellant Did not Request an EH (Opinion, p. 11) 33

(3) Appellant “Would Have” Noticed The Mismatch Between 34 The Notice and Envelope Dates Had He Not Thrown Away the Envelope (Opinion, p. 30)

(4) Appellant Did not Want Enforced Levy Action 35 (Opinion, pp. 9,30)

(5) Appellant Wanted to Preserve the Right to Judicial Review 36 and Defer Collection Indefinitely (Opinion, p. 30)

h. The Finding of No Prejudice is Clearly Erroneous. 37

C. APPELLEE ABUSED HIS DISCRETION IN 39


FAILING TO OBTAIN THE REQUISITE VERIFICATION UNDER §§6330(c)(1) AND (c)(3)(A).

1. The NOD Failed To Verify Compliance With 40 Applicable Law And Administrative Procedure, And Falsely Verified Compliance.

2. “Administrative Procedure” Under §6330(c)(1) 41 Includes All Applicable IRMs.

(a) “Administrative Procedure” 42

(b) Effect of “Any” 44

(c) “Administrative Procedure” Should not Be Rendered 45 Superfluous.

(d) Legislative History 46

(e) Interpretations of §6330(c)(1) By Chief Counsel 46 Are Persuasive and Entitled To Skidmore Deference.

3. The Holding That Applicable IRM Requirements 48 Need Not be Verified is Unsupportable.

4. The Tax Court Erred in Not Reviewing the NOD 49 for Abuse of Discretion. D. IF MAIL DATE APPLIES, THE NOTICE WAS 51 DEFECTIVE AND IS THUS A NULLITY.

E. APPELLEE IS ESTOPPED FROM ASSERTING 53 THE MAIL DATE APPLIES AND ALSO ESTOPPED FROM ASSERTING APPELLANT PERFECTED A TIMELY F12153.

1. Misrepresentations/Concealments. 54

2. Reliance. 58


3. Affirmative Misconduct. 59

4. Prejudice. 59

VIII. CONCLUSION 60

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT 61

CERTIFICATE OF SERVICE 62

ADDENDUM


Table of Authorities Authority Page No.

Statutes 5 U.S.C. §591(1) 43 5 U.S.C. §592(3) 42 26 U.S.C. §6330 11-19,22,23,26-28, 32,35,36,38-42, 44-51,54,55,57,59 26 U.S.C. §6503 2 26 U.S.C. §7482 1 26 U.S.C. §7502 29 26 U.S.C. §7803(a)(3)(A)) 38,52,54,60

Regulations 1 C.F.R. §301.4(d)(2)) 42 26 C.F.R. §301.6330-1 13,15,17,18,19,23, 26-28,32,33,35,38, 57

Cases Adolphson v. C.I.R., 842 F.3d 478 (7th Cir.2016) 15,16

Andre v. Commissioner, 127 T.C. 68 (2006) 15,28

Anonymous v. Commissioner, 145 T.C. 246 (2015) 48

Arizona Public Service Co. v. EPA, 211 F.3d 1280 17 (D.C. Cir. 2000), cert. denied, 532 U.S. 970 (2001)

Armstrong v. Commissioner, 139 T.C. 468 2012) 47

Atlantic Cleaners & Dryers v. U.S., 19 286 U.S. 427 (1932)

Auer v. Robbins, 519 U.S. 452 (1997) 20,23

Barrington v. Surface Transportation Board, 17 636 F.3d 650 (D.C. Cir. 2011)

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Authority Page No.

Bell Atlantic Tel. Cos. v. FCC, 44 131 F.3d 1044 (D.C. Cir. 1997)

Belton v. Commissioner, 562 F.Supp. 30 54 (D. D.C. 1982)

Bongam v Commissioner, 146 T.C. 52 (2016) 25

Britt v. Schindler Elevator Corp., 45 637 F.Supp. 734 (D. D.C. 1986)

Broomfield v. Commissioner, T.C.Memo. 2005-148 19

Butti v. Commissioner, T.C. Memo. 2008-82 50

Chevron U.S.A. v. NRDC, 467 U.S 837 (1984) 14,17,24,48

Commissioner v. Brown, 380 U.S. 563 (1965) 15,42

Commissioner v. Duberstein, 363 U.S. 278 (1960) 26

Conway v. Commissioner, 137 T.C. 209 (2011) 39,49

Dalton v. C.I.R, 682 F.3d 149 (1st Cir. 2012) 17,43

Davis v. Commissioner, 716 F.3d 560 47 (11th Cir. 2013)

Davis v. Commissioner, 115 T.C. 35 (2000) 43

Dole v. USW, 494 U.S. 26 (1990) 14

Erlenbaugh v. United States, 409 U.S 239 (1972) 43

Fredericks v. Commissioner, 126 F.3d 433 13, 38 (3rd Cir. 1997)

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Authority Page No.

Freije v. Commissioner, 125 T.C. 14 (2005) 39,49

Gafford, T.C. Memo. 2016-40 21

GE Co. v. U.S., 929 F.2d 679 (Fed. Cir.1991) 20

Ginzburg v. Commissioner, 127 T.C. 75,87 (2006) 45

Glass v. Commissioner, 471 F.3d 698 (6th Cir. 2006) 47

Gurule v. Commissioner, T.C. Memo. 2015-61 44

Hanna v. Zoning Board of Adjustment of Pittsburgh, 56 437 A.2d 115 (1981)

Hassett v. Welch, 303 U.S. 303 (1938) 24

Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 13 134 S.Ct. 1744 (2014)

In re Total Realty Mgmt., LLC, 706 F.3d 245 19 (4th Cir.2013)

Investors Research Corp. v. SEC, 53 628 F.2d 168 (D.C. Cir.), cert. denied, 449 U.S. 982 (1980)

Jones v. Commissioner, T.C.Memo. 1984-171, 24,25 47 TCM (CCH) 1444

King v. Commissioner, T.C. Memo. 2015-36 44

Knowlton v. C.I.R., 791 F.2d 1506 (11th Cir. 1986) 42

Kuretsky v. C.I.R., 755 F.3d 929 (D.C. Cir. 2014), 15 cert. denied, 135 S.Ct. 2309 (2015)

Lal v. INS, 255 F.3d 998 (9th Cir.2001) 21

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Authority Page No.

Landers v. State Farm Lloyds, 257 S.W.3d 740 56 (Tex. App. 2008)

Lee v. Commissioner, 144 T.C. 40 (2015) 41

LG Kendrick, LLC v. Commissioner, 147 T.C. 17 (2016) 53

Lightening Lube, Inc. v. Witco Corp., 31 802 F.Supp. 1180 (D.N.J. 1992)

Lin v. Unemployment Comp. Bd. of Review, 56 735 A.2d 697 (1999)

Loyd v. Commissioner, T.C.Memo. 1984-172, 24,25 47 TCM (CCH) 1450

Massachusetts Fair Share v. Law Enforcement Assistance, 39,41 758 F.2d 708 (D.C. Cir. 1985)

Mayo Foundation for Medical Education v. U.S., 45 562 U.S. 44 (2011)

McDonald v. C.I.R., 764 F.2d 322 (5th Cir. 1985) 15

McGladrey, Hendrickson & Pullen v. 45 Syntek Finance Corp., 389 S.E.2d 636, 637 (1990), aff'd, 411 S.E.2d 585 (1992)

Medical Practice Solutions LLC v. Commissioner, 49,50 T.C. Memo. 2009-214

Medical Practice Solutions, LLC v. Commissioner, 41 T.C.Memo. 2010-98

Meyer v. Commissioner, T.C. Memo 2013–268 40,41

Morton v. Ruiz, 415 U.S. 199 (1974) 41

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Authority Page No.

Murphy v. IRS, 493 F.3d 170 (D.C. Cir. 2007), 24 cert. denied, 553 U.S. 1004 (2008)

NLRB v. Food and Commercial Workers, 14,42 484 U.S.112 (1987)

Northeast Dairy Coop. Fed. v. Dellwood Foods, 18 72 B.R. 663 (Bankr. N.D.N.Y. 1987)

Odah v. U.S., 611 F.3d 8 (D.C. Cir. 2010) 13

Offiler v. Comm’r, 114 T.C. 492 (2000) 21

Osborn v. Visa Inc., 797 F.3d 1057 (D.C. Cir., 2015) 13

Pierce v. SEC, 786 F.3d 1027,1038 (D.C. Cir. 2015) 53

Reinhard v. Lawrence Warehouse Co., 31 107 P.2d 501 (1940)

Romano-Murphy v. CIR, 816 F.3d 707 14,22,38,41,44,46, (11th Cir. 2016) 54

Sadat v. Mertes, 615 F.2d 1176 (7th Cir.1980) 31

Schmidt v. Commonwealth, 433 A.2d 456 (1981) 56

Secretary of Labor v. Twentymile Coal Co., 20 411 F.3d 256 (D.C. Cir. 2005)

Sego v. Commissioner, 114 T.C. 604 (2000) 13

Sherwin Williams Co. v. United States, 38 403 F.3d 793 (6th Cir. 2005)

Skidmore v. Swift & Co., 323 U.S. 134 (1944) 46,47,48

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Authority Page No.

Smith v. Commissioner, 124 T.C. 36 (2005) 53

Stockstrom v. Commissioner, 190 F.2d 283 54 (D.C. Cir. 1951)

Travelers Indemnity Co. v. Swanson, 38 662 F.2d. 1098 (5th Cir. 1981)

Trout v. Commissioner, 131 T.C. 239 (2008) 43,44,45,47,48

True the Vote, Inc. vs. IRS, 831 F.3d 551 26 (D.C. Cir. 2016)

TRW, Inc. v. Andrews, 534 U.S. 19 (2001) 14

UAW v. Brock, 816 F.2d 761 (D.C. Cir. 198) 24

U.S. v. Beeman, 2010 WL 653062 (W.D. Pa. 2010), 15,55 aff'd, 388 Fed.Appx. 82 (3rd Cir. July 28, 2010)

U.S. v. Heffner, 420 F.2d 809 (4th Cir. 1969) 42

U.S. v. U.S. Gypsum Co., 333 U.S. 364 (1948) 26

U.S. v. Mead Corp., 533 U.S. 218 (2001) 46

U.S. v. Menasche, 348 U.S. 528 (1955) 14,45

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) 17

Vestal v. Commissioner, 152 F.2d 132 (D.C. Cir. 1945) 54

Via Christi Hospitals Wichita v. Burwell, 21 820 F.3d 451 (D.C. Cir.2015)

Wadleigh v. Commissioner, 134 T.C. 280 (2010) 43,48,49

Watt v. Alaska, 451 U.S.159 (1981) 14,42

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Authority Page No.

Wells Fargo & Co. & Subs. v. Commissioner, 47 224 F.3d 874 (8th Cir. 2000).

Xerox Corp. v. U.S., 41 F.3d 647 (Fed. Cir. 1994) 24

Congressional Reports H.REP. 108-804, 108th Cong., 2nd Sess., 43 Report on Activities of 108th Congress of the Agriculture Committee (Jan. 3, 2005)

S.Rep. 105-174, 105th Cong., 2d Sess. (1998) 46

H.Conf. Rep. No. 599 [H.R. 2676], 46 105th Cong., 2d Sess. (1998)

Internal Revenue Manual IRM §1.11.2.1.1(1) 44

IRM §1.11.2.2(3) 44

IRM §3.13.62.7.4 4

IRM §5.1.9.3.2.1(6) 36,49,50,57

IRM §5.1.10.5(1) 52,54

IRM §5.11.1.2.2.2 3,10,11,15,19,22,39,40, 39,40,47-49,51,54,59

IRM §8.22.2.2.4.7(2) 11

IRM §8.22.5.3.1 23

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Authority Page No.

IRS Notices and Publications Chief Counsel Notice CC-2006-019 (Aug. 18, 2006) 47

Chief Counsel Notice CC-2009-010 (Feb. 13, 2009) 47

Office of Chief Counsel, 24,25 Service Center Advice 1998-036

Office of Chief Counsel, 47 Service Center Advice 201212018 (Mar. 23, 2012)

IRS, Letters and Notices Offering an Appeal Opportunity, 21 Letter 11 (https://www.irs.gov/individuals/letters-and-notices-offering-an-appeal-opportunity) (last updated 08/03/16)

IRS Publication 1 4

Publication 594 4

Publication 1660 4

TIGTA, Final Audit Report: Office of Appeals Should 22 Continue to Strengthen and Reinforce Procedures for [CDP] Cases, Ref. No. 2006-10-123 (Sept. 20, 2006)

Other References Jefferey Lehmann & Michelle Phelps, 42 West’s Encyclopedia of American Law (2005)

Black’s Law Dictionary (4th ed. 1968) 15,18,39

Black’s Law Dictionary (6th ed. 1990) 42

Random House Dictionary of the English Language 15 (College Ed. 1969)

Webster’s Third New International Dictionary (1976) 15

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https://www.irs.gov/

https://www.irs.gov/individuals

https://www.irs.gov/individuals/letters

https://www.irs.gov/individuals/letters-and-notices-offering-an-appeal-opportunity

I. JURISDICTION

Jurisdiction exists under 26 U.S.C. §7482.

II. ISSUES

1. AS AN ISSUE OF FIRST IMPRESSION UNDER 26 U.S.C. §6330-WHEN A CDP NOTICE IS MAILED ON A DATE DIFFERENT THAN THE DATE ON THE NOTICE, WITHOUT DISCLOSING THE MAILING DATE, WHEN DOES THE 30-DAY PERIOD MEASURING TIMELINESS OF A HEARING REQUEST COMMENCE?

2. WERE FINDINGS ESSENTIAL TO THE TAX COURT’S DECISION CLEARLY ERRONEOUS?

3. AS AN ISSUE OF FIRST IMPRESSION-DID APPELLEE ABUSE HIS DISCRETION IN FAILING TO PROVIDE THE REQUISITE VERIFICATION UNDER 26 U.S.C. §6330(c)(1)?

4. WAS THE CDP NOTICE DEFECTIVE, AND THUS A NULLITY?

5. IS THE IRS ESTOPPED FROM ASSERTING THE UNDISCLOSED MAIL DATE OF THE CDP NOTICE STARTED THE 30-DAY PERIOD UNDER 26 U.S.C. §6330 AND/OR THAT APPELLANT THEREAFTER PERFECTED A TIMELY HEARING REQUEST?

III. PERTINENT STATUTES AND REGULATIONS

Pertinent statutes and regulations are cited in the addendum.

IV. STATEMENT OF CASE

Appellee’s Revenue Officer (“RO”) mailed two Notices of Intent to Levy

and Right to Hearing (“Notice”) dated (but not mailed on) February 11, 2009.

(Joint Appendix/“App.” 53,55). Appellant mailed back to the RO two Forms 12153

(“F12153”), “Request for Collection Due Process [CDP] Hearing [CDPH] or

Page ! of !1 62


Equivalent Hearing [EH].” (App.59). These led to a hearing conducted by

Appellee’s Settlement Officer (“SO”). (App.61-64).

Appellant claimed the collection statute of limitations (“SOL”) under 26

U.S.C. §6503 expired before the hearing, rendering the tax uncollectible.(App.65). 1

On May 6, 2011, the SO mailed a Notice of Determination (“NOD”), rejecting

Appellant’s claim and sustaining the proposed levy. (App.66).

On June 8, 2011, Appellant filed his Petition with the Tax Court. Appellant

filed a Motion for Summary Judgment (Docket 39) that was denied (Docket 48).

The reason for denial was that two facts had to await trial: (1) the date the Notices

were mailed; and (2) the date Appellant mailed Forms 12153. (Docket 48). Trial

was held before Judge Albert Lauber on October 22, 2014. The decision of August

17, 2016, was entered on August 22, 2016. (Dockets 86,87). Appellant filed his

Notice of Appeal on November 17, 2016. (Docket 88).

V. FACTS

In October 1994, Appellee assessed the taxes at issue. (App.51). The SOL

expired on July 21, 2009.(App.59).

The RO prepared a Notice dated February 11, 2009, for tax years

1986-1991, addressed to Appellant.(App.53,173). He concurrently prepared a

Unless otherwise specified, all statutes are from 26 United States Code.1

Page ! of !2 62


Notice for a joint 2001 tax liability addressed to Appellant and his wife. The RO 2

attempted to serve both Notices at Appellant’s residence that same day, but did not

effect service. (App.54). On February 13, he prepared envelopes to mail the

Notices. He did not generate new Notices or handwrite the mailing date on them.

He enclosed the Notices in envelopes with a private postage meter stamp dated

after February 11, 2009 (App.55,56,102). The envelopes had no U.S.P.S. postmark

(App.56). They were mailed either February 13 or 14, 2009. (App.105)

The RO testified that the Internal Revenue Manual (“IRM”) governed his

actions. (App.82,84,87,97). He did not follow the Tax Code (Title 26) or

regulations, just the IRM. (App.86). He admitted IRM part 5.11 (App.254) is a

part he must follow.(App.86).

IRM §5.11.1.2.2.2(4) (2008) mandates: “the date on the [CDP Notice]

MUST be the date it’s…mailed…to the taxpayer.” (App.90,264). The RO knew of

this requirement (App.101.1) but intentionally did not follow it(App.173,56,89-90)

because it “was not significant” (App.89,90). It was more important to “save paper

and ink.” (App.89,101).

The Notice states Appellant had “30 days from the date of this letter” to

mail F12153 to obtain a CDPH. (App.173). The mail date was not provided to

Appellant until the SOL expired. (App.41,91,132,133). The Notice included IRS

Only the Notice for 1986-1991 is at issue; Appellant subsequently voluntarily 2

paid 2001’s taxes. (App.54).

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Publication 1,“Your Rights as a Taxpayer,” Publication 1660, “Collection Appeal

Rights,” Publication 594, “What You Should Know About the IRS Collection

Process,” and F12153, with instructions. (App.57,58,186,198,202,43). These

directed Appellant to follow the date on/of the Notice (e.g., App.173), and were

intended to inform Appellant of his rights, and Appellee intended that Appellant

rely on them. (App.57,58,108,109). Nothing in the Notice or accompanying

documents gave Appellant: (1) any reason to doubt the information and

instructions provided, (2) any indication the mail date might be different than the

date on the Notice, or (3) any reason to inspect the envelope.(App.140).

Appellee admitted he did not use a mail log showing the mail date, as

required by IRM §3.13.62.7.4. (App.43,93,57,59). The Notice could have been

mailed either February 13 or 14, 2009. (App.105).

Appellant’s wife retrieved the Notices at the post office on February 17,

2009. (App.80,59;Exhibit12-J). At home, following routine practice, she opened

the envelopes, removed the contents, set them aside for Appellant (who was not

home) in a pile with other opened mail, and discarded the envelopes. Appellant

never saw or possessed the envelopes.(App.80,81).

Appellant read the Notice and other documents.(App.124,363-365,144). He

learned that mailing F12153 within 30 days of the Notice’s date (timely) resulted in

a CDPH and suspended the SOL, and that mailing it after thirty days (untimely)

but within one year of the Notice’s date resulted in an EH and did not suspend the

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SOL. (App.126,127,364-367,186-205,350). Per the Notice and accompanying

documents, Appellant had 30 days from February 11, 2009 (by March 13, 2009)

within which to mail a timely F12153 for a CDPH. (App.125,139,140,364).

Appellant estimated the SOL would soon expire. (App.126,127,366). He did

not want to suspend it. It was important to him that this be over as soon as possible

regardless of what he might have to pay in the interim. (App.

126,127,130,131,134,136,138,365,366,371). Thus, Appellant mailed two Forms

12153. The first requested a hearing for 2001. The second requested a hearing for

1986-1989 and 1999-2001 (App.59); 1999-2001 was inadvertently listed instead of

1989-1991. (App.60-61).

Appellant prepared, signed, and dated F12153 for 2001 (App.213) at work

on March 13, 2009. His wife had already signed it. He had no other form with him

that day. (App.127,128). That F12153 is clearly dated March 13, 2009. (App.

120,214). He personally carried it to the Fort Washington, PA, Post Office near his

office that day and mailed it. (App.127,128).

Appellant prepared the Express Mail label for the envelope addressed to the

RO. (App.206). The envelope was postmarked March 13, 2009, by the Fort

Washington Post Office.(App.127). Appellant kept his copy of the mailing receipt

for Exhibit 19-J. (App.209,128). He handwrote “2001” on the top of it (App.209)

while at the Post Office to have a record of the mailing and to distinguish it from

the F12153 he intended to mail for the other years the next day.(App.128).

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Appellant retained the “Customer Copy” of the Express Mail label (App.246),

postmarked March 13, and which bears the handwritten notation “2001.” Appellant

marked it while at the Fort Washington Post Office. (App.128). The form for

2001(Exhibit 19-J) was the only form Appellant mailed that day. (Id.)

Appellant filled out, signed, dated and untimely mailed F12153 for

1986-1991 (Exhibit18-J) on March 14, 2009, while at the Ambler, PA, Post Office,

near his home. (App.128,129). He only had that form with him that day.(App.

129,130). Because Appellant was in a hurry, he omitted some years involved and

included inapplicable years, neglected to check the EH box, and the date on the

form is ambiguous. (App.134,135,145). However, Appellant testified clearly that

he dated this form March 14 at the Ambler Post Office on March 14. (App.

128,129). Appellant retained a copy of the Express Mail envelope for that second

F12153 (App.208,129,59) and the “Customer Copy” of the postage receipt and

mailing label (App.210), postmarked March 14, 2009, from the Ambler Post

Office.(App.129,60). Appellant made no notes on his copies of the second mailing

because he had already marked the first one, so marking the second mailing would

have been superfluous. (App.209,129;Exhibit 39-J,p4). F12153 for 1986-1991

(Exhibit 18-J) was the only one mailed on March 14, 2009, and the only one

mailed from the Ambler Post Office.(App.129,130).

Based on the information provided by Appellee, and understanding that he

had the right not to suspend the SOL, Appellant intentionally mailed F12153 for

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1986-1991 on March 14, 2009, after thirty days from the date on the Notice. (App.

130,367-369). His intention was to get this over with as soon as possible, to obtain

a hearing that would not suspend the SOL (App.126,130,135,138-141,244,366,

367), and to pay what he had to pay until the SOL expired. He immediately began

making voluntary payments. (App.130,134,141; Exhibits 38-J,p5-7,48-J,pgs.5-6).

Appellant could easily have mailed both forms timely on March 13, but

intentionally did not, to avoid suspending the SOL for 1986-1991. (App.

127,130,371). He also could have mailed one form covering all years, including

2001, but he deliberately did not for the same reason. Id.

Appellee received both forms on March 16, 2009 (App.59) in two different

envelopes with clear postmarks showing they were mailed on different days from

different Post Offices.(App.94,95; Exhibits13-J,14-J,15-J). The SO had no question

that F12153 for 2001 (Exhibit19-J) was mailed in the envelope postmarked March

13, 2009. (App.120). However, despite Appellee’s duty to associate Forms 12153

with the postmarked envelopes they arrive in (IRM §5.1.9.3.2.1(6) (11-28-2008),

the RO mishandled the mailings, and said he could not determine which form came

in which envelope. (App.94,95,102,103,115). Appellee never explained how or

why the envelopes were mishandled (id.), but admitted the only procedure in place

to ensure compliance with the IRM was “a paperclip.” (App.94).

Using the date on the Notice, the RO determined the form in the envelope

postmarked March 13 was timely and the form in the other envelope was untimely.

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(App.182,98,104).He applied the date on the Notice because “the letter [Notice]

states it’s 30 days from the date of the letter.”(App.98). But despite knowing one

form was mailed untimely, he treated both as timely mailed because “that’s what

most taxpayers want.” (App.98,103,182).

The RO then contacted Appellant by telephone, leaving a message saying

only that Appellant’s Forms were “unprocessable.” Appellant responded by letter

dated April 2, 2009 (App.215,131) asking him to explain the problem. The RO

testified [falsely] Appellant never responded. (App.94,102,182).

The RO responded by letter (App.216,93,94) explaining only that the

problem was Appellant’s failure to correctly list the years on F12153. (App.60,61).

He demanded Appellant perfect F12153 for 1986-1991 by mailing a new F12153

listing the correct years.(App.61).

Neither the RO’s phone message nor his letter disclosed that:

a. The Notice was not mailed on the date printed on it; 3

b. Appellant’s Forms 12153 were mishandled;

c. He did not know which form was mailed in which envelope;

d. He treated both forms as timely; and

Appellant was not informed the mail date differed until after the SOL expiration 3

date. (App.132,133).

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e. Both forms were deemed timely solely on the RO’s assumption Appellant

wanted a CDPH for all years because “that’s what most taxpayers

want.” (App.94,99,103,131,132).

Appellee never tried to ascertain which form was mailed in which envelope.

(App.103,122,132).

In response, unaware of the facts in subparagraphs a-e above, and believing

he was perfecting an untimely F12153 that did not suspend the SOL, Appellant

mailed a new F12153 with the correct years. (App.131,217,218,370,60,61,131,

153). If Appellant knew the actual Notice mail date, or what had happened after

Forms 12153 were received by Appellee, he would have delayed mailing F12153

for 1986-1991 to ensure it would not be timely (App.126,127,130), or he would not

have perfected it (App.131). 4

After receiving the perfected F12153, the SO wrote three times (Exhibits26-

J,28-J,31-J) informing Appellant that Appeals would determine whether F12153

was timely or untimely, and, if timely, would issue a Determination Letter [issued

after a CDPH], but if untimely, would issue a Decision Letter [issued after an EH].

Before the hearing, Appellant’s counsel wrote to the SO (App.248) pointing

out F12153 for 1986-1991 was untimely and, therefore, the upcoming hearing is an

EH. The parties stipulated Appellant made the same point at the hearing—that by

The facts in subparagraphs b-e, above, were not disclosed until trial. (App.4

101.2,101.3,102,103,115,116; Exhibits 24-J,39-J,41-J). The mail date was not disclosed until the NOD. (App.251,132; Exhibits 24-J,35-J,39-J).

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mailing an untimely F12153, he sought an EH. (App.65). The RO admitted if a

F12153 is untimely, taxpayers receive an EH (not a CDPH).(App.105).

At the hearing on January 22, 2010 (App.64), Appellant again explained

F12153 for 1986-1991 was intentionally mailed untimely on March 14 to not

suspend the SOL, and F12153 for 2001 was intentionally mailed timely on March

13.

Before the hearing, the RO and SO determined the F12153 for 1986-1991

was untimely per the Notice date, February 11, 2009 (App.182,221,95,97,98,104,

115). The SO later decided it was timely because she did not know which F12153

arrived in which envelope (App.116). She treated the F12153 as timely,

purportedly to err on Appellant’s side. (App.223; Exhibits 55-P,56-P). However,

she knew she was erring on IRS’ side, not Appellant’s, because his position was

exactly the opposite, as communicated to her before, during, and after the hearing.

(App.132,115-119,223,244,246-248,65; Exhibit56-P,¶7).

Ultimately, though, the IRS dropped that argument and argued instead that

the Notice’s mailing date controls.(App.223,224,252).

In performing her duties, the SO relied on the IRM. (App.107). She did not

know tax code cites. (Id.) The Notices were in the file that she reviewed. (App.

114,115). She knew IRM parts 5 and 8 are among the administrative procedures

that must be followed (App.108), that the Notice and mailing dates did not match

as required by IRM §5.11.1.2.2.2(7-12-08) (App.264,110), and this was an

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“irregularity.”(App.113; IRM §8.22.2.2.4.7(2)), but she did not investigate the

irregularity or the reasons the RO did not follow the IRM.(App.114).

The SO admitted she knew the purpose of the required verification,

§§6330(c)(1) and (c)(3)(A), is to assure Appellee followed the laws, regulations,

and administrative policies and procedures so taxpayers’ rights are protected. (App.

107). She acknowledged all laws, including §§6330 and 6331 and IRM parts 5 and

8 (administrative procedures), must be followed (App.107,108), but she admitted

she did not verify the RO followed IRM §5.11.1.2.2.2 (2008), requiring that the

mail and Notices dates match.(App.264,112).

The NOD (Exhibit 41-J) ignores Appellee’s failure to follow §6330(a)(3)(B)

and IRM §5.11.1.2.2.2 (2008), and fails to state the reasons for this, but

inexplicably verifies [falsely] compliance with all applicable laws and

administrative procedures.

VI. SUMMARY OF ARGUMENT

Applicable law requires the date on the Notice, not a different undisclosed

mail date, starts the 30-day period for determining timeliness under §6330.

The Tax Court clearly erred with regard to several important findings and

failed to make essential findings. The Court erred in applying an incorrect legal

standard, failing to consider applicable law and relevant evidence, and making

findings unsupported by the preponderance of the evidence or, in some instances,

by any evidence.

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Appellee abused his discretion in failing to provide the requisite verification

under §§6330(c)(1) and (c)(3)(A), and by twice falsely verifying all applicable

laws and administrative procedures were followed. The Tax Court erroneously

failed to review for this abuse of discretion.

If the undisclosed mail date applies for calculation of the 30-day period

under §6330, the Notice was defective, and thus a nullity.

Appellee is estopped from asserting the undisclosed mail date applies.

Appellee is also estopped from asserting Appellant perfected a timely F12153,

thereby rendering F12153 for 1986-1991 processable and suspending the SOL.

The Court erred in its estoppel analysis, and failed to even address estoppel as

applicable to Appellee’s perfection claim.

VII. STANDARD OF REVIEW

A Tax Court’s factual findings are reviewed for clear error, matters of

discretion are reviewed for abuse of discretion, and questions of law are reviewed

de novo. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S.Ct. 1744 (2014);

Odah v. U.S., 611 F.3d 8, 13 (D.C. Cir. 2010); Sego v. Commissioner, 114 T.C. 604,

610 (2000). Issues #1 and #3 being matters of first impression, they are reviewed

de novo. Issue #2 concerning matters of factual finding, it is reviewed for clear

error. Issue #4 concerns a Collection Due Process Hearing determination, which is

reviewed in the Tax Court for abuse of discretion, Sego, id., but on appeal de novo

because the appeal issue is the misapprehension and misapplication of law. Osborn

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v. Visa Inc., 797 F.3d 1057, 1063 (D.C. Cir., 2015) (“An abuse of discretion

necessarily occurs when a district court misapprehends the underlying substantive

law, and we examine the underlying substantive law de novo.”) In cases of

estoppel against the IRS, which is Issue #5, determinations of whether a party

failed to establish its burden of proof are reviewed under the clearly erroneous

standard, findings of fact for clear error, and conclusions of law de novo.

Fredericks v. Commisisoner, 126 F.3d 433 (3rd Cir.1997).

VIII. ARGUMENT

A. WHEN A CDP NOTICE IS MAILED ON A DATE DIFFERENT THAN THE DATE ON THE NOTICE, WITHOUT DISCLOSING THE MAILING DATE, THE DATE ON THE NOTICE STARTS THE 30-DAY PERIOD UNDER §6330.

1. Section 6330(a)(3)(B) Demonstrates Congressional Intent That Taxpayers Rely On The Notice Date.

This is an issue of first impression—where the date on the Notice differs

from its mail date, which date starts the 30-day period under §§6330(a)(3)(B) and

(e)?

The IRS promulgated regulations addressing this, 26 C.F.R. (“Reg”)

§§301.6330-1(b)(1), (c)(1) (30-day period runs from “the day after the date of the

CDP Notice”). Thus, the two-part inquiry under Chevron U.S.A. v. NRDC, 467 U.S

837,842-843 (1984) applies: (1) whether Congress has directly spoken to the

precise question; if so, that ends the matter; (2) if not, whether the agency’s

regulations filling the gap are a permissible construction of the statute.

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The Court first must determine congressional intent, using traditional tools

of statutory construction, NLRB v. Food and Commercial Workers, 484 U.S.

112,123 (1987), starting with the statute’s language. Watt v. Alaska, 451 U.S.

159,265 (1981). The language must be interpreted in the context of the whole law,

its object and policy, Dole v. USW, 494 U.S. 26,35 (1990), giving effect “to every

word and clause,” U.S. v. Menasche, 348 U.S. 528,538-39 (1955), treating no

sentence or word as “superfluous, void, or insignificant.” TRW, Inc. v. Andrews,

534 U.S. 19,31 (2001).

Section 6330(a)(1) states no levy can be made unless the taxpayer is notified

in writing of the right to a hearing not less than 30 days beforehand. “Not less

than” means “at least.” Black’s Law Dictionary 1209 (4th ed.1968); Romano-

Murphy v. CIR, 816 F.3d 707,711 (11th Cir. 2016). Section 6630(a)(3) mandates

the notice “shall include in simple and nontechnical terms... (B) the right to request

a hearing during the 30-day period under paragraph (2).” U.S. v. Beeman, 2010 WL

653062 (W.D. Pa. 2010) (Notice must indicate in simple and nontechnical terms a

“specified time period”), aff'd, 388 Fed.Appx. 82 (3rd Cir. July 28, 2010); Kuretsky

v. C.I.R., 755 F.3d 929,934 (D.C. Cir. 2014) (hearing can be requested during

those thirty days”), cert. denied, 135 S.Ct. 2309 (2015); Romano-Murphy, 816 F.

3d at 711 (hearing request must be within the 30 days “provided in the notice”).

“Simple and nontechnical terms” means “readily understood.…easy,

straightforward.” Webster’s Third New International Dictionary 2121 (1976);

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Random House Dictionary of the English Language, p.1226 (College Ed. 1969).

Where a term has commonplace usage and is used without limiting definition or

history indicating a contrary intent, that common and ordinary usage is persuasive.

McDonald v. C.I.R., 764 F.2d 322,329 (5th Cir.1985), citing Commissioner v.

Brown, 380 U.S. 563,571 (1965).

“During” means “[t]hroughout the course of;…after the commencement and

before the expiration of.” Black’s Law Dictionary 594. “During” implies there’s a

“definite window within which a taxpayer has to ask for his hearing.” Andre v.

Commissioner, 127 T.C.68,71 (2006); Adolphson v. C.I.R., 842 F.3d 478,486 (7th

Cir. 2016). A taxpayer who requests a hearing beyond this 30-day window does not

act “during” it and can only obtain an EH. Reg§301.6330-1(i)(1). An untimely

request triggers an EH culminating in a Decision Letter not appealable to the Tax

Court, and does not toll the SOL. (§6330(e)(1); Reg §301.6330-1(g)(3),

Example(1)).

Therefore, the 30-day window must start from the date on the Notice. That is

the only “specified,” “definite,” readily understood date the taxpayer is given.

(App.57,58). Nothing in the Notice discloses the mailing date unless the dates

match (which is why IRM §5.11.1.2.2.2 says they “MUST” match). If taxpayers

cannot rely on the Notice date and must go outside the Notice to confirm its

correctness (as the Tax Court states, App.152), then the mandate that the period be

“specified in the Notice” in readily understood terms is outright nullified.

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To construe the statute as requiring (per the IRS) or allowing (per the Tax

Court) the 30-day period to run from a concealed mail date ignores that Congress

specifically devised a system for CDP Notices and taxpayer responses, and

nullifies the language of §6330(a)(3)(B) and the express references to §6330(a)(3)

(B) in §6330(b)(1) and §6330(e)(1). This thwarts Congress’ intent to enable

taxpayers to rely on the notice to readily calculate the applicable 30-day period.

The system devised by Congress must prevail. Adolphson, 842F.3d at 486 (system

devised by Congress controls). A taxpayer’s right to rely on what he is told cannot

be disregarded simply because the government did not comply with its own law or

procedure.

Congress enacted §6330 as part of the Taxpayer Bill of Rights for taxpayer

protection. Dalton v. C.I.R, 682 F.3d 149,154-55(1st Cir. 2012). Section 6330(a)(3)

(B) was one of these rights. The holding below, that the 30-day period starts from

a date not given, undermines that right and misleads taxpayers because it is

impossible to calculate a definite 30-day window from an unknown date.

2. Treasury Regulations Require Reliance On The Notice Date.

Assuming arguendo that §6330 does not answer the question raised, the

question becomes whether Appellee’s regulation fills the gap consistent with

permissible construction of the statute. Chevron, 467 U.S. at 843;Van Hollen v.

FEC, 811 F.3d 486,495 (D.C. Cir. 2016).An agency’s interpretation must be

deferred to unless it is arbitrary, capricious, or contrary to the statute. Chevron, 467

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U.S. at 844. The interpretation must be reasonable in light of the statutory language

and Congress’ goals in adopting the statute Arizona Public Service Co. v. EPA,

211F.3d1280,1287(D.C.Cir.2000), cert. denied, 532U.S.970(2001); Barrington v.

Surface Transportation Board, 636 F.3d 650,666 (D.C. Cir. 2011).

a. Pertinent Regulatory Language Unambiguously Refers To The Notice Date.

Regulations provide “[t]he taxpayer must request the CDP hearing within the

30-day period commencing on the day after the date of the CDP Notice.” Reg

§301.6330-1(b)(1),(c)(1). Consistent with §6330(a)(1)’s reference to “the CDP

notice” as a physical document, “the CDP Notice” as used in §301.6330-1(b)(1)

and (c)(1) is a proper, capitalized noun referring to the physical notice itself, not, as

the Tax Court erroneously determined, the act of delivery. Moreover, additional

information the IRS is required to provide “will be included with the CDP

Notice.”(§301.6330-1(a)(2),Q&A-A8). Thus, “the CDP Notice” references a

physical document accompanied by other physical documents.

The regulations refer to “delivery” of the CDP Notice (and “accompanying

materials”) as something separate from the notice itself. Reg §301.6330-1(a)

(2),Q&A-A8(i) (“The IRS may effect delivery of a pre-levy CDP Notice (and

accompanying materials) in one of three ways....”). “Delivery” means “[t]he act by

which the res [thing] is placed within the…possession of another.” Black’s Law

Dictionary 515; Northeast Dairy Coop. Fed. v. Dellwood Foods, 72 B.R. 663,682

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(Bankr. N.D.N.Y. 1987) (“the act by which goods are placed within the…

possession of another”). “Delivery” imports, therefore, that a physical thing (CDP

Notice) is being delivered to another’s possession. Similarly, the regulations refer

to the CDP Notice being “issued.” 26C.F.R.§301.6330-1(c)(2),Q&A-C3 (“the

CDP Notice issued under Section 6330”);also (c)(2),Q&A-C7. “Issue” is,

obviously, a verb describing an act of issuing something—that something being

the CDP Notice.

The regulations’ references to “the date of the CDP Notice” nowhere refer to

the act of delivery of the notice. This interpretation is confirmed by regulatory

provisions addressing when the 30-day period under §6330(d)(1) for filing an

appeal to Tax Court begins. These state the taxpayer must appeal within the 30-

day period commencing the day after the date of the NOD-§301.6330-1(f)(1)

and (2),Q&A-F1. Broomfield v. Commissioner, T.C.Memo. 2005-148, at *6 n.2, 89

T.C.M. (CCH) 1466,1467,n.2. The regulations further clarify that “the date of the

NOD” refers to the date on a physical thing—the notice— not when the thing is

mailed:

Q–E8. How will Appeals issue its determination?

A–E8. (i) Taxpayers will be sent a dated [NOD] by certified or registered mail....[T]he [NOD] will advise the taxpayer of the…right to seek judicial review within 30 days of the date of the NOD.

§301.6330-1(e)(3), Q&A-E8, E10 (emphasis added.)

Identical words used in different parts of the same act have the same

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meaning. Atlantic Cleaners & Dryers v. U.S., 286U.S.427,433 (1932). This

ensures that the statutory scheme is coherent and consistent. In re Total Realty

Mgmt., LLC, 706F.3d245,251 (4th Cir.2013). Applying this rule, “the day after the

date of the CDP Notice” must have the same meaning as “the day after the date of

the NOD,” both of which refer to the date appearing on a Notice, not to the date of

mailing.

The Tax Court’s incomplete analysis of the regulations focused on only one

word: “These provisions refer, not to the date on the CDP Notice, but to the date of

the CDP Notice.”(App.149) (original emphasis). This tunnel vision failed to plumb

the regulation’s “true nature” and “merely examin[ed] an isolated word out of

context, which may have been chosen improvidently.” GE Co. v. U.S., 929F.

2d679,680(Fed.Cir.1991). No consideration was given to other key parts of the

regulation or how “of” the Notice could differ from “on” the notice consistent with

§6330, especially given that the Notice says to calculate the 30-day period from

“the date of this letter” (App.173) and the enclosed publication (App.193) says that

the 30-day period runs from the date “on” the Notice.

Finally, the Example the Tax Court relied upon in concluding “Notice” is a

verb referring to the act of mailing, even when mail date is concealed

(§301.6330-1(c)(2),Q&A-C9(3),Example 1) must be understood as consistent with

the rule that, because IRM §5.11.1.2.2.2(2008) emphatically states that the dates 5

Originally adopted July, 2002.5

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“MUST” always match, it is understood and intended the mail date is always to be

the date on the Notice. The absence of any example where the dates do not match

is stark evidence Appellee’s position is incorrect.

b. Assuming The Regulation Is Ambiguous, Appellee’s Interpretation Is Entitled To Auer Deference.

An agency’s construction of its regulation is “controlling unless plainly

erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452,461

(1997). This Court “affords great deference to an agency’s interpretation of its

own regulation.” Secretary of Labor v. Twentymile Coal Co., 411 F.3d 256,260

(D.C. Cir. 2005). An agency’s interpretation is reasonable if it sensibly conforms

to the regulation’s purpose and wording. Lal v. INS, 255 F.3d 998,1004 (9th Cir

2001).

Appellee’s consistent interpretation of “the date of the CDP Notice” outside

of this litigation shows the applicable date is the one on the Notice, and not

something else. Because the date when the 30-day period begins to run is a

creature of the Commissioner’s regulations, his consistent interpretation controls

under Auer. Via Christi Hospitals Wichita v. Burwell, 820 F.3d 451,456 (D.C. Cir.

2015). Therefore, it is significant that the Notice used by the IRS after the

regulation’s promulgation expressly states that the 30-day period starts “from the

date of this letter.” (App.173); Gafford v. CIR, T.C. Memo. 2016-40, at *4

(emphasis added); Offiler v. CIR, 114 T.C. 492,494 (2000); IRS, Letters and

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Notices Offering an Appeal Opportunity, Letter 11 (https://www.irs.gov/

individuals/letters-and-notices-offering-an-appeal-opportunity) (last updated

08/03/16) (“You need to file a Form 12153. . . within 30 days from the date of the

letter in order to appeal the proposed action[.]”; Letter 1058 (identical language).

The Treasury Inspector General for Tax Administration (TIGTA) issued a

Final Audit Report on September 20, 2006, presenting findings and a

recommendation that were later adopted by Appellee:

Appeals used a date other than the levy notification date provided to the taxpayer to determine timeliness.

In most cases, the IRS mails the levy notification letter prior to the date on the letter to ensure the taxpayer receives it with the full 30 calendar days in which to appeal. [This letter] instructs the taxpayer to request a CDP hearing within 30 calendar days from the date of the letter. However, the Appeals procedure is to start the 30-day time period using the mailing date….This practice contradicts the instructions provided to the taxpayer and the IRS’ intent in mailing the letter early....To ensure taxpayer rights are protected, Appeals should use the same information provided to taxpayers when classifying hearing requests [as a CDPH or EH]. . . . . Recommendation 1:...Appeals should review current procedures to ensure the process for ensuring the timeliness of CDP requests is consistent with the information provided to taxpayers.... Hearing officers should be reminded of these procedures, and managers should enforce these procedures when reviewing cases.

TIGTA, Final Audit Report: Office of Appeals Should Continue to

Strengthen and Reinforce Procedures for [CDP] Cases, Ref. No. 2006-10-123, pp.

6-7,8 (Sept. 20, 2006) (emphasis added). This unequivocally shows that “the date

of the CDP Notice” means the disclosed date on the CDP Notice. The clear intent

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https://www.irs.gov/

https://www.irs.gov/individuals

https://www.irs.gov/individuals/letters

https://www.irs.gov/individuals/letters-and-notices-offering-an-appeal-opportunity

was/is that timeliness of F12153 is to be determined consistent with the

information communicated to taxpayers. And this is consistent with IRM

§5.11.1.2.2.2 (2008), mandating in double emphasis:

Caution:

The date on the [CDP Notice] MUST be the date it is…mailed…to the taxpayer.

The date “on” the levy notice, therefore, is “the date of the CDP Notice.”

While the IRM does not have the force of law, it is persuasive authority because it

reflects the Commissioner’s intent. Romano-Murphy, 816F.3d at 719.

The IRM further clarifies the CDP Notice is the controlling notice for

determining timeliness because a copy sent to a POA should have the same date on

it (but not necessarily the same mailing date). (IRM §8.22.5.3.1, ¶7 (03-29-2012)).

If the POA’s copy of the Notice does not match the taxpayer’s copy, Appellee must

use the taxpayer’s copy for determining timeliness. Id., ¶8. The references to

“copy” of “the CDP Notice” further demonstrate that “Notice” means a physical

document and the date on it controls.

Appellee has, therefore, consistently interpreted “the date of the CDP

Notice” to mean the date on the Notice. This interpretation, not the one Appellee

advances herein for litigation purposes, is entitled to Auer deference. It is the only

interpretation that: (1) sensibly conforms to the wording and purpose of the

regulation, (2) is consistent with §6330’s language and purpose and the Taxpayer

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Bill of Rights, (3) assures CDP Notices will be clear to taxpayers with respect to

determining timeliness of hearing requests, (4) implements the congressional

mandate that notice of the right to request a hearing “during” the 30-day period be

communicated in the Notice in “simple and nontechnical terms”so the taxpayer has

a definite and discernible date to go by, and (5) assures communication of the

statutory 30-day window.

3. The Tax Court Disregarded Established Rules of Statutory Interpretation, Including The Rule That Doubt Be Resolved In Taxpayers’ Favor. Moreover, The Court Cited Case Law Requiring The Notice’s Date Be Deemed The Mail Date.

Assuming arguendo that §6330(a)(3)(B) is ambiguous where the Notice and

mail dates differ, and Reg §301.6330-1 does not resolve this, any doubt should be

resolved in taxpayers’ favor. Hassett v. Welch, 303 U.S. 303,314 (1938); Xerox

Corp. v. U.S., 41 F.3d 647,658 (Fed.Cir. 1994 (“special rule in tax cases”); Murphy

v. IRS, 493 F.3d 170,179 (D.C. Cir. 2007), cert. denied, 553 U.S. 1004 (2008)

(following Hassett); UAW v. Brock, 816 F.2d 761,66 (D.C. Cir. 198) (courts must

avoid illogical, unreasonable, absurd or unjust results).

The Tax Court failed to apply Hassett, just as it ignored §§6330(a)(3), (a)(3)

(B) and (e), and disregarded the required Chevron analysis and rules of statutory

interpretation, and incompletely analyzed Reg §301.6330-1 and IRS’ consistent

interpretation of the regulation, which is entitled to Auer deference. Instead, the

Court cited purportedly analogous cases decided under different statutes,

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inapplicable here. But Chevron analysis and Auer deference, together with the

Hassett rule (if needed), should have ended the inquiry. Chevron at 842-43.

Beyond this, in the cases it cites, the Tax Court gives effect to the date given

and relied on by the taxpayer when a NOD is dated after its mailing date: the NOD

is deemed mailed “as of” the Notice’s date. Jones v. Commissioner, T.C.Memo.

1984-171, 47 TCM (CCH) 1444, 1448; Loyd v. Commissioner, T.C.Memo.

1984-172, 47 TCM (CCH) 1450, 1453; Office of Chief Counsel, Service Center

Advice 1998-036, p. 3 (“1998 CCA”).

Jones and Loyd emphasized taxpayers’ justifiable reliance on a Notice’s

misleading date. Jones, 47TCM (CCH) at 1447-48; Loyd, 47 TCM (CCH) at 1453

(taxpayers “entitled” to rely on date given in Notice; Notice deemed mailed “as of”

its date to protect that “entitlement”). But the Court ignored Appellant’s reliance

on the Notice’s date, artificially distinguishing Jones, saying, “In Jones, the date on

the deficiency notice was later than the mailing date.”(App.154). But taxpayer

reliance (the foundation for treating the Notice’s date as mail date) occurs

whenever a taxpayer relies on the Notice’s date regardless of whether it is before

or after the mail date, particularly where, unlike the cases cited by the Court,

Appellant had the legal right to choose between mailing F12153 timely or

untimely, a choice guided by his intent to suspend or not suspend the SOL.

In Jones and Bongam v Commissioner,146 T.C. 52,59, n.5 (2016), the right

to act untimely did not exist; taxpayers could appeal timely or not at all. Here,

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Appellant had the right to choose between timing alternatives with different legal

consequences.

Significantly, IRS acknowledges NODs dated before mailing disadvantage

taxpayers relying on the Notice’s date. (1998 CCA, p.5). Protecting taxpayers’

entitlement to rely on the Notice’s date, therefore, is the paramount consideration.

Applying an undisclosed/unknown mail date after a taxpayer has relied on the one

date he knew disfavors taxpayers and benefits the IRS, contrary to Hassett, and

yields unreasonable and unjust results. If, ultimately, a different, undisclosed mail

date applies, Jones and Lloyd require that the Notice’s date should be deemed the

mail date, the only date Appellant had for exercising his statutory rights.

B. FINDINGS ESSENTIAL TO THE TAX COURT’S DECISION ARE CLEARLY ERRONEOUS AND KEY FINDINGS WERE OMITTED.

1. Standard of Review

Tax Court findings must be based on the totality of the facts. Commissioner

v. Duberstein, 363 U.S. 278,289 (1960). Findings are erroneous if based on

substantial error, if unsupported by substantial evidence, if contrary to the weight

of all the evidence, or if supported by evidence but the court of appeals, reviewing

the entire evidence, entertains the definite and firm conviction that a mistake was

made. U.S. v. U.S. Gypsum Co., 333 U.S. 364 (1948). It is hardly possible for an

Appeals court to determine whether clear error occurred if the trial court has not

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considered all the evidence. True the Vote, Inc. vs. IRS, 831F.3d551,561 (D.C.Cir.

2016).

2. Finding That Appellant Intended a CDPH

a. Actual Timeliness is the Only Factor Relevant to Whether a F12153 Obtains a CDPH or EH

The Court found Appellant intended a CDPH. (App.153).Taxpayer intent is

irrelevant. Imagine a taxpayer filing an untimely tax return then claiming it is

timely because he “intended” that. There is nothing allowing application of intent

to the timeliness determination. §6330(e); Reg §301.6330-1(b)(1), Q&A-B2, B3,

and B4, (c)(1), Q&A-C1(iii)&(v), C2, C3, C4, C5, C7, C8, and C9(3)

(Examples1-4); §301.6330-1(f)(1) (NOD applies to all timely requests, and the

SOL is suspended; §301.6330-1(g)(1) and (2),Q&A-G1). If untimely taxpayers

forego a CDPH for an EH, the SOL is not suspended, and a “Decision Letter” is

issued. (Reg §301.6330-1(b)(2), Q&A-B2,(g)(2), Q&A-G2, and (i)(1) and (2),

Q&A-13; §301.6330-1(c)(2), Q&A-C7). Therefore, regardless of intent, only a

timely request obtains a CDPH and suspends the SOL.(App.143,153; §6330(e)

(SOL suspended if hearing requested under §6330(a)(3)(B) allowing a CDPH only

when F12153 is mailed “during” applicable 30-day period); (Reg §301.6330-1(b)

(1) and Q&A-B2, B4; (c)(1) and (c)(2), Q&A-C2, C3, C5, C7, C8) (taxpayer must

request CDPH within the 30-day period commencing the day after the date of the

CDP Notice).

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If perfection of a defective request is required, as herein, timeliness cannot

be perfected. (Reg §301.6330-1(c)(1),(c)(2),Q&A-C1(iii) and C7). F12153 is

either timely or not–no exceptions, no extensions. (§301.6330-1(c)(2),Q&A-C5

and C9(3),Examples 1-3; also §(i)(1) and (2),Q&A-11(iii)). Perfection of an

untimely F12153, therefore, perfects an EH request, as evidenced by

§301.6330-1(c)(2),Q&A-C7 (if untimely, taxpayer cannot obtain a CDPH; he must

be notified and offered an EH “without submitting an additional request”).

By law, an untimely request can only be an EH request.

b. Actual Timeliness is the Only Factor Relevant to Whether the SOL is Suspended

The SOL is not suspended when F12153 is untimely. Intent is irrelevant.

(§6330(e); Reg §301.6330-1(g)(1) and (2), Q&A-G1; §301.6330-1(g)(2), Q&A-G2

and (i)(1) and (2), Q&A-13). On this the Tax Court and Appellee agree:

Petitioner’s argument assumes section 6330(e)(1) operates to suspend the collection period of limitations, regardless whether the IRS…grants the taxpayer a CDPH, only if the taxpayer has 6

requested that hearing within the 30-day period referenced in section 6330(a)(2) and (3)(B). Respondent does not challenge this assumption, which is consistent with the regulations.

(App.153; emphasis added).

c. Both Sides Agreed An Untimely F12153 Results In An EH

This erroneously implies Appellee has power to grant a CDPH where F12153 is 6

untimely. This is not possible. The 30-day period cannot be waived or altered. Andre v. Commissioner, 127 T.C. 68,70 (2006) and cases cited therein.

Page ! of !27 62


F12153 (Exhibits 11-J&18-J) is clear: a CDPH is possible only if it is timely

mailed (postmarked) within 30 days from the date of the Notice. The Notice and

publications (App.173 and, e.g., Exhibit 10-J) are clear: an untimely request

obtains an EH and an EH does not suspend the SOL. (§6330(e); §301.6330-1(g)

(2),Q&A-G2, and (i)(1) and (2),Q&A-13; App.143,153). Per Reg §301.6330-1(c)

(1), Q&A-C1(iii) & C7, Appeals advised it would determine timeliness and, if

untimely, Appellant would receive a “Decision Letter.” (App.229,233 and Exhibit

31-J), which is only issued after an EH. (§301.6330-1(i)(1),(c)(1) and (2),Q&A-

C7).

Before the hearing, Appellant’s counsel communicated F12153 was

untimely, so the upcoming hearing would be an EH. (App.244).The only factor

supporting Appellee’s hearing classification as a CDPH was Appeals’ timeliness

determination. (App.251). The RO admitted taxpayers receive an EH if F12153 is

untimely. (App.105). Thus, before the hearing, IRS’ position was the same one

Appellant took at trial, and now on appeal. 7

d. Assuming Intent Is Relevant, if Appellant Intended an Untimely F12153, He Could not Have Intended a CDPH.

If somehow taxpayer intent is relevant, the only standard for determining

intent is whether Appellant intended to mail F12153 timely or untimely (§7502-

Appellee also agrees herein that whether F12153 suspended the SOL is solely a 7

function of the timeliness determination. (Answer to Motion to Exceed Word Limit, Docket #1683016).

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postmark on taxpayer’s mailing determines mailing date). This is clear from the

discussion in Parts a-c, supra, and Appellant’s correct understanding that he could

not receive a CDPH (thereby suspending the SOL) if F12153 was untimely.

(Facts,pp.6-7;App.143,153). Inexplicably, although the Tax Court ignored the

governing regulation, it nevertheless agreed that the SOL is not suspended by an

untimely F12153 (App.143,153).

If Appellant’s intent was relevant, the evidence clearly shows he

intentionally mailed it untimely based on the only date given to him for calculating

the 30-day period. (Facts, pp. 5-7, supra).

e. The Tax Court Omitted Necessary Findings Regarding Appellant’s Intent to Act Timely or Untimely and Whether He Actually Acted Timely or Untimely Based on the Date He Had For the 30-Day Period.

If Appellant intentionally mailed F12153 untimely (March 14, 2009) based

on the only 30-day period he was aware of (commencing February 11, 2009), his

intent was/is irreparably inconsistent with the Tax Court’s finding that he intended

a CDPH. The Court even said so. (App.142,143, noting Appellant’s contention he

intended to untimely request a hearing, and agreeing that, if correct, he should

have received an EH and the SOL would not be suspended, and would have

expired). Despite this, the Court inexplicably ignored all evidence regarding

Appellant’s intent to act untimely, and failed to determine whether Appellant

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actually acted timely or untimely, or intended to act timely or untimely, based on

the one date he had for the 30-day period.

Because a timely F12153 is a condition for obtaining a CDPH, the failure to

consider evidence showing Appellant intentionally mailed his F12153 untimely in

the envelope postmarked March 14, 2009 (Facts, pp. 5-7, supra), combined with

the failure to make any finding regarding (1) Appellant’s intent as to timeliness,

and (2) when the F12153 for 1986-1991 was actually mailed, constitute critical

omissions. The facts ignored and the findings omitted clearly negate any intent to

timely request a CDPH. 8

Intent is a state of mind typically determined by considering the actor’s

conduct in light of the facts known. Sadat v. Mertes, 615F.2d1176,1181(7th Cir.

1980). A person lacks intent if he is ignorant of the operative facts, because intent

presupposes knowledge. Reinhard v. Lawrence Warehouse Co., 107 P.2d 501

(1940); Lightening Lube, Inc. v. Witco Corp., 802 F.Supp. 1180,1190-91 (D.N.J.

1992).

Thus, if the Tax Court had answered the key question of intent (timeliness)

noted at App.143, and considered all evidence, it would have had to explain how

Appellant could possibly, let alone probably, have intended a CDPH where the

clear weight of the evidence established he intentionally mailed the F12153 after

Yet in denying summary judgment, the Tax Court held the date Appellant mailed 8

(postmarked) his F12153 was a key fact to be determined at trial. (Order denying Petitioner’s Motion for Summary Judgment, pg.2).

Page ! of !30 62


the 30th day from the one date given him for calculating the 30th day. (Facts, pp.

5-7, supra). Thus, timeliness was incorrectly determined based on what was

not disclosed or known: the Notice’s mail date. The finding that Appellant

intended a CDPH was, therefore, clearly erroneous. This is significant because the

Court recognized that an untimely hearing request could only obtain an EH and

could not suspend the SOL.(App.143,153).

f. Based on the Information Appellant Had, His Hearing Request Was Untimely and Intended to be Untimely.

The only date known to Appellant for starting the 30-day period was the date

printed on the Notice, a date he was instructed to rely upon (App.173,193,198,

204,350,90,91,139,57,58). The mailing date was not known to him (App.173,41,

91). He never saw or possessed Appellee’s mailing envelope, and he had no reason

to doubt the instructions that told him to rely on the date on the Notice. Therefore,

he intended an untimely request. (App.173,193,198,204,350,364,124,125,139,

140,57,58).

g. Facts Relied Upon by the Court are Not Inconsistent with Intent to Request an EH and are Negated by Evidence That Appellant Intended To and Did Act Untimely.

The following key findings of the Tax Court are negated by: (1) law and/or

evidence not considered by the Court, (2) evidence Appellant intended to and did

untimely mail F12153 based on available information regarding the 30-day period,

Page ! of !31 62


and/or (3) other evidence as well. Certain findings are not supported by any

evidence.

(1) Failure to Check the EH Box on F12153 (App..145,152)

If the request was untimely, Appellant could not obtain a CDPH. The RO

confirmed this (App.105), and the Court agreed. (App.143). When a hearing

request is untimely, it is the RO’s legal responsibility to inform taxpayers of this

and offer an EH. (Reg §301.6330-1(c)(1) and (2),Q&A-C7). The RO never did this.

(App.99). Regardless, the regulation is clear that an untimely F12153 constitutes a

request for an EH whether or not the EH box is checked.

Because Appellant had one year from the date of the Notice to request an EH

(§301.6330-1(i)(2),Q&A-17,19), he was not required to request an EH on the

untimely F12153. If he wanted an EH to not suspend the SOL, all he had to do was

mail F12153 after the 30th day from the date provided for the start of the 30-day

period, but within the applicable one year period. Appellant did this.(Facts, p.7).

The Court ignored applicable law and uncontradicted testimony that, when

Appellant mailed his perfected F12153, he knew untimely mailing of the original

Form required he receive an EH. (App.136). Because timeliness cannot be

perfected, perfecting the request could only perfect Appellant’s untimely request

and could not suspend the SOL. (§6330(e); Reg §301.6330-1(c)(1),(c)(2),Q&A-

C1(iii) and C7,(g)(2),Q&A-G2; App.143,153).

(2) Appellant Did not Request an EH (App.145,146)

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As shown, an untimely F12153 is a request for an EH and no further

request is needed. (26C.F.R.§301.6330-1(c)(1)&(2),Q&A-C7). Because

Appellant intentionally mailed an untimely F12153 based on the one date

provided, he could only have intended an EH. (App.142; Reg §301.6330-1(b)(1)

and Q&A-B2,(c)(2),Q&A-C7).The Tax Court ignored this regulation as well as the

overwhelming evidence of Appellant’s intent and actions regarding timeliness, and

the uncontradicted reason Appellant untimely mailed F12153: to not suspend the

SOL. (§301.6330-1(f)(1),(i)(1) and Q&A-13, and (g)(2),Q&A-G2; App.143,153).

The Court’s suggestion that an additional request was needed is clear error and

flatly contradicted by Reg §301.6330-1(c)(1)&(2),Q&A-C7.

The Court erred in forgetting its initial recognition that an intentional

untimely hearing request could not legally constitute anything but an EH (App.

143). It also erred in ignoring uncontradicted evidence that an EH was in fact

again timely requested after F12153 was mailed. Before the hearing, Appellee

informed Appellant that Appeals would determine timeliness; if F12153 was

untimely, a “Decision Letter” would issue. (App.229,233; Exhibit 31-J). As noted, 9

a “Decision Letter” is issued when F12153 is untimely and, thus, an EH must be

held. (Reg §301.6330-1(c)(1)&(2),Q&A-C7,(f)(1),(i)(1) and Q&A-13). IRS’ letters

The Court referenced these but neglected to disclose or comment on their relevant 9

content.(App.145,146).

Page ! of !33 62


did not ask for or require any response. Appellee made it clear that the type of

hearing depended on Appeals’ timeliness determination.

That the hearing was an EH was also timely communicated in writing to the

SO by Appellant’s counsel before the hearing. The Court alluded to counsel’s

communication, but ignored the part stating that, because F12153 was untimely,

the hearing was an EH (App.244) as admitted by the RO.(App.105). Finally, the

Court ignored the Stipulation that Appellant sought an EH.(App.65).

This finding disregarded all of the above law and uncontradicted facts and

was clearly erroneous.

(3) Appellant “Would Have” Noticed The Mismatch Between The Notice and Envelope Dates Had He Not Thrown Away the Envelope (App.152)

It is uncontradicted Appellant never saw or possessed the envelopes and

never threw anything away.(App.144,152,81,124).

Intent is a state of mind based on what is known; it was improper for the

Court to consider what Appellant might have known if the facts were different.

Also, this clearly erroneous finding would require taxpayers to not rely on what

they are intended/instructed to rely on. (App.57,58).

(4) Appellant Did not Want Enforced Levy Action (App.145,152)

The Court ignored the testimony on this issue, which shows his intent to

avoid collection was in conjunction with, not independent of his intent to not

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suspend the SOL. Appellant could accomplish only by an untimely F12153. (App.

126,127,130,131,134-136,138,140,365,366).

The Court ignored uncontradicted testimony that the EH box was not

checked due to an oversight because Appellant was in a hurry when completing the

form at the post office (App.134). But the Court acknowledged his rush and

acknowledged it caused other mistakes on the form.(App.145)

When Appellant perfected F12153, it should have led to an EH per

applicable law and administrative procedure. Appellant would not have perfected if

he knew Appellee’s speculative assumption that he wanted a CDPH, and the

improper treatment of his untimely F12153 as timely.(App.94,103,131,216).

There is no evidence that collection would have begun before the hearing if

Appellee had properly classified Appellant’s F12153 as untimely. Indeed, the Court

noted collection action is not a certainty in an EH situation. (App.147-IRS “may”

proceed to collect if hearing is an EH). See also: Reg §301.6330-1(i), Q&A-14

(collection action may or may not proceed; IRM §5.1.9.3.5.1(2)(2016) (collection

action generally will not proceed while an EH is pending).

Appellant’s intent to avoid collection action without suspending the SOL

was, therefore, entirely consistent with an EH and was perfectly acceptable under

the law. (§6330(e)&(a)(3)(B); Reg §301.6330-1(c)(2),Q&A-C7,(g)(2),Q&A-G2;

App.143). Again, Reg §301.6330-1(i)(1) and (2),Q&A-12&15 provide that at an

EH, “Appeals will consider the same issues it would have considered at a

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CDPH….” The differences are that an EH does not suspend the SOL and a

“Decision Letter” is not appealable. The RO’s testimony confirmed this.(App.105).

(5) Appellant Wanted to Preserve the Right to Judicial Review and Defer Collection Indefinitely (App.153)

These findings are purely speculative. There is no evidence Appellant ever

thought about the concepts of “judicial review” or wanting to defer collection

“indefinitely” at that time. The Court supported these findings only by claiming

they would achieve the “goals” expressed in F12153. (App.153). But actually no

such goals are expressed in F12153 (Exhibits 18-J,22-J) or elsewhere. Moreover,

the evidence contradicts the Court’s finding. Appellant sought a hearing to obtain a

collection alternative, not to avoid paying, to preserve judicial review, or to defer

collection “indefinitely.” The evidence clearly established the intent was to obtain a

collection alternative before the SOL expired. (App.126,140). In fact, after mailing

F12153, Appellant immediately started voluntarily paying. He stopped when he

believed the SOL expired. (Facts,pgs.9-10). The Court ignored these payments,

enabling it to avoid explaining how Appellant intended to defer collection

“indefinitely” when he never said this.

But assuming Appellant intended to defer collection indefinitely, there was a

risk Appellee would deem his F12153 frivolous under §6330(g), and deny

Appellant any hearing. This would have defeated the goals actually expressed in

F12153.

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All the above uncontradicted evidence is inconsistent with findings 3 and 4

(App.152,153), which are not supported by any evidence.

h. The Finding of No Prejudice is Clearly Erroneous.

The Court found Appellant sustained no prejudice because he intended a

CDPH (App.151-153) even though, if F12153 was intentionally untimely,

Appellant could not have intended a CDPH. (App.143,153).The factors relied upon

by the Court are not supported by the law and/or preponderance of the evidence (or

in some instances any evidence) as demonstrated in Part g above. Moreover, the

Court ignored uncontradicted testimony that Appellant intentionally acted untimely

to not suspend the SOL, and that he would not have acted when he did if he knew

the facts Appellee failed to disclose before.(App.131).

If the mail date applies, Appellant unintentionally mailed F12153 timely,

obtained a CDPH, and suspended the SOL. The prejudice to him from this is

obvious and was acknowledged by the Tax Court’s recognition that, if Appellant’s

F12153 was intentionally untimely, the SOL expired and the taxes are

uncollectable (App.143). Therefore, it cannot legitimately be denied that Appellant

suffered prejudice.

Further, the denial or loss of Appellant’s legal rights constituted prejudice in

itself. Travelers Indemnity Co. v. Swanson, 662 F.2d. 1098,1103 (5th Cir. 1981);

Fredericks v. C.I.R., 126 F.3d. 433,446 (3rd Cir. 1997) (prejudice due to deprivation

of legal benefit or right to which taxpayer was entitled). Appellant sustained

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significant denial of legal rights, including: (1) the right to avail himself of the

benefit of the SOL (by not suspending it), (2) the right to make choices (and

preserve rights) §6330 and Reg §301.6330-1 grant taxpayers, not the IRS, (3) the

right (§6330(a)(3)(B); §7803(a)(3)(A)) to be informed when the 30-day period

began, (4) the right to request a hearing untimely and not suspend the SOL while

still obtaining an EH. (Reg §301.6330-1(i)(1)), and (5) the right to the same

treatment accorded other similarly situated taxpayers. Romano-Murphy, 816 F.3d

at 720; Sherwin Williams Co. v. United States, 403 F.3d 793,797 (6th Cir. 2005); see

generally Massachusetts Fair Share v. Law Enforcement Assistance, 758 F.2d

708,711 (D.C. Cir. 1985).

Although §6330 is intended to protect taxpayers’ rights, Appellee’s knowing

concealment of important facts and improper treatment of F12153 as timely denied

Appellant legal rights, all to Appellee’s benefit, not to Appellant’s. As the Tax

Court observed, this suspended the SOL when it would have otherwise expired,

rendering uncollectible taxes collectible.(App.143,153).

C. APPELLEE ABUSED HIS DISCRETION IN FAILING TO OBTAIN THE REQUISITE VERIFICATION UNDER §§6330(c)(1) AND (c)(3)(A).

Failure to provide the requisite verification is an abuse of discretion. Freije

v. Commissioner, 125 T.C. 14,36 (2005);Conway v. Commissioner, 137 T.C.

209,215 (2011).

Section 6330(c)(1) mandates: “[t]he appeals officer shall at the hearing

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obtain verification from the Secretary that the requirements of any applicable law

or administrative procedure have been met.” Requisite verification is the first

requirement of a NOD. (§6330(c)(3)(A)). The SO abused her discretion in failing 10

to verify (yet falsely verifying) compliance with §6330(a)(3)(B) and mandatory

IRM provisions such as IRM §5.11.1.2.2.2 (2008). Whether IRM provisions

constitute “administrative procedures” under §6330(c)(1)&(c)(3)(A) is a question

of first impression in the Circuit Courts of Appeal.

1. The NOD Failed To Verify Compliance With Applicable Law And Administrative Procedure, And Falsely Verified Compliance.

The Notice was issued when the RO printed and dated it February 11,

2009. Meyer v. Commissioner, T.C. Memo 2013–268,*8). The parties agreed

he did not mail or deliver it that day, despite IRM §5.11.1.2.2.2 (date on

Notice “MUST” be same as date of mailing). The Notice was mailed on

February 13 or 14, 2009.(Facts,p. 3, supra; App.105)

The date on the Notice did not provide the mailing date. Appellant only

had the Notice date for calculating his 30-day window. (Facts, pp.5-6, supra).

Appellant was neither informed nor aware the mailing and Notice dates were

different. (App.57,58).Given Appellee’s insistence (and Tax Court holding)

that the undisclosed mail date starts the 30-day period, compliance with IRM

§5.11.1.2.2.2 was critical. Yet Appellee intentionally did not comply.

“Verification” means “confirmation of correctness, truth, or authenticity….” 10

Black’s Law Dictionary 1732 (4th ed.1968).

Page ! of !39 62


The RO testified he only follows the IRM. (Facts,p.4, supra). He

intentionally did not follow IRM §5.11.1.2.2.2 because it allegedly “wasn’t

warranted” (Stip,¶21); he thought he would “save paper and ink.”(Facts,p.5,

supra). But he also did not simply handwrite the mailing date on the Notice.

(Id.)

The SO knew the mailing and Notice dates did not match and the mail

date used for her timeliness determination (App.251) was not disclosed. Thus,

she did not verify compliance with §6330(a)(3)(B) or IRM §5.11.1.2.2.2.

(App.112,251,252). The NOD identifies what Appellee verified. (Exhibit 41-

J). Issuance of the Notice is verified, but not proper issuance and mailing,

which is required. Meyer, T.C.Memo 2013-268, at *13 (Appeals must verify

both proper issuance and mailing); accord Lee v. Commissioner, 144 T.C.

40,49 (2015); Medical Practice Solutions, LLC v. Commissioner, T.C. Memo.

2010-98, at *16-17&n.16.

Inexplicably, the NOD utilizes, under the heading “Verification of

Legal and Procedural Requirements,” language stating: “Appeals has

obtained verification from the IRS office collecting the tax that the

requirements of any applicable law, regulation or administrative procedure

with respect to the proposed levy or NFTL filing have been met” (App.251),

and that “Collection followed all legal and procedural requirements.” (App.

252). These verifications were/are patently false.

Page ! of !40 62


2. “Administrative Procedure” Under §6330(c)(1) Includes All Applicable IRMs.

Congress’s adoption of §6330(c)(1) codified the established rule that,

“where rights of individuals are affected, it’s incumbent upon agencies to follow

their own procedures.” Morton v. Ruiz, 415 U.S. 199,235 (1974); Massachusetts

Fair Share v. Law Enforcement Assistance, 758 F.2d 708, 711 (D.C. Cir. 1985)

(requiring firm adherence to self-adopted rules); Romano-Murphy v. 11

Commissioner, 816 F.3d 707,718 (11th Cir. 2016) (duty to follow IRS’ rules not

limited to formal regulations). On issues of statutory construction, the court’s first

job is to determine congressional intent using traditional tools of statutory

construction. NLRB v. Food and Commercial Workers, 484 U.S.112,123(1987);

Watt v. Alaska, 451 U.S. 159,265 (1981).

(a) “Administrative Procedure”

Where a word has commonplace meaning, without limiting definition or

contrary legislative history, its common and ordinary usage is persuasive.

Commissioner v. Brown, 380 U.S. 563,571 (1965); Knowlton v. C.I.R., 791 F.2d

1506,1508 (11th Cir. 1986). Administrative procedures are the “[m]ethods and

processes before administrative agencies as distinguished from judicial procedure,

which applies to courts.” Black’s Law Dictionary 46 (6th ed. 1990); Jefferey

This Court cited U.S. v. Heffner, 420 F.2d 809,811-12 (4th Cir. 1969) (IRS must 11

scrupulously observe rules, regulations, or established procedures even if not formally labeled a regulation or adopted per the APA).

Page ! of !41 62


Lehmann & Michelle Phelps, West’s Encyclopedia of American Law 105 (2005).

The Administrative Conference Act of 1964 (“ACA”), (5 U.S.C. §592(3); 1

C.F.R. §301.4(d)(2)) defines “Administrative Procedure:”

[P]rocedure used in carrying out an administrative program and is to be broadly construed to include any aspect of agency organization, procedure, or management….

The ACA delegated broad authority to the Administrative Conference of the

U.S. regarding administrative procedure. (H.REP. 108-804, 108th Cong., 2nd Sess.,

Report on Activities of 108th Congress of the Agriculture Committee, p.236 and n.

2, Jan. 3, 2005). The ACA’s chief purpose was/is to facilitate agencies’ cooperation

to assure private rights are fully protected and regulatory activities and

responsibilities are carried out in the public interest.(5 U.S.C. §591(1)).

The Restructuring and Reform Act of 1998 [“RRA”], 26 U.S.C. §6330, had

a similar purpose of protecting “private rights,” namely taxpayers’ rights. Congress

adopted §6330 as part of the Taxpayer Bill of Rights to prevent taxpayer abuse.

Davis v. Commissioner, 115 T.C. 35,37 (2000); Dalton v. Commissioner, 682 F.3d

149,154-55 (1st Cir. 2012) (goal was to safeguard taxpayers in tax collection

matters). Given this similarity in purpose, the ACA’s definition of “administrative

procedure” applies to “Administrative Procedure” under §6330(c)(1). Erlenbaugh

v. United States, 409 U.S 239,243-245 (1972) (legislative bodies use words with

consistent meaning when intended to serve the same function). Judge Marvel,

concurring in Trout v. Commissioner, 131 T.C. 239, 257-262 (2008) noted:

Page ! of !42 62


The IRM outlines business rules and administrative procedures and guidelines used…to conduct business. It contains policy, direction and delegations of authority…necessary to carry out IRS responsibilities to administer tax law…. The business rules, operating guidelines, procedures and delegations guide managers and employees in carrying out day to day responsibilities.

Id. at 261, n.5 (original emphasis). Accord: Wadleigh v. Commissioner, 12

134 T.C. 280,295, n.14 (2010). Judge Marvel additionally said:

The IRM is the single, official source/compilation of IRS instructions to staff relating to “administration and operation” of the Service. The IRM provides a central repository of uniform guidelines on operating policies and procedures for use by all IRS offices. It contains guidance on IRS policies and directions employees need to carry out their responsibilities in administering tax laws.

Id. (emphasis added). Accord: IRM §1.11.2.1.1(1) (01-01-2017) (IRM is the

primary, official compilation of instructions relating to IRS administration and

operation, the single official compilation of IRS policies and procedures).

The IRM additionally states: “Instructions which are the primary source of

guidance belong in the IRM. Primary, for this purpose, means it’s the main

source of procedural guidance.” (IRM §1.11.2.2(3)).The IRM contains procedures

that Appellee intends its personnel to follow. Trout, at 261; accord, Gurule v.

Commissioner, T.C. Memo. 2015-61, at *23, n.9 (Marvel, J.); King v.

Commissioner, T.C. Memo. 2015-36, at *24, n.16. The IRM clearly constitutes

Seven other judges (Colvin, Cohen, Vazquez, Gale, Haines, Wherry, and Paris) 12

joined this opinion, 131 T.C. at 257,262.

Page ! of !43 62


Appellee’s “administrative procedures.” Indeed, the RO testified he only follows

the IRM.(Facts, p.4).

(b) Effect of “Any”

Verification applies to “any” applicable law or administrative procedure.

(§6330(c)(1)). “Any” is “broad language.” Britt v. Schindler Elevator Corp., 637

F.Supp. 734,736 (D. D.C. 1986), usually “given the full force of ‘every’ or ‘all.’”

Black’s Law Dictionary 120 (4thed. 1968); McGladrey, Hendrickson & Pullen v.

Syntek Finance Corp., 389 S.E.2d 636, 637 (1990), aff'd, 411 S.E.2d 585 (1992).

The general rule that IRMs do not have the force of law is inapplicable

under §6330(c)(1) because Congress gave IRMs the force of law by imposing a

statutory obligation to verify applicable administrative procedures were followed.

Trout, 131 T.C. at 260. 13

(c) “Administrative Procedure” Should not Be Rendered Superfluous.

It is the court’s duty to give effect to “every word and clause of a statute.”

United States v. Menasche, 348U.S.528,538-39(1955), without rendering any

clause, sentence, or word inoperative, superfluous, or void. TRW, Inc. v. Andrews,

534 U.S. 19,31 (2001). To give “any applicable law or administrative procedure”

an interpretation excluding IRMs renders “or administrative procedure”

meaningless. The term “law” includes both the tax statutes and Treasury

The IRM is persuasive authority in interpreting statutory intent. Romano-13

Murphy, 816 F.3d at 719; Ginzburg v. Commissioner, 127 T.C. 75,87 (2006).

Page ! of !44 62


regulations. Mayo Foundation for Medical Education v. U.S., 562 U.S. 44,55-57

(2011). Thus, the term “administrative procedure” must refer to something else,

i.e., the IRM.

(d) Legislative History

Statutory construction requires examining legislative history. Bell

Atlantic Tel. Cos. v. FCC, 131 F.3d 1044,1047 (D.C. Cir. 1997). The

legislative history of the RRA includes the Senate Finance Committee Report,

which notes a broad, unlimited verification requirement:

During the [CDP] hearing, the IRS is required to verify that all statutory, regulatory, and administrative requirements for the proposed collection action have been met.

S.Rep. 105-174, 105th Cong., 2d Sess., at 68 (1998) (emphasis added).

Accord: H.Conf. Rep. No. 599 [H.R. 2676], 105th Cong., 2d Sess., p.264

(1998).

(e) Interpretations of §6330(c)(1) By Chief Counsel Are Persuasive and Entitled To Skidmore Deference.

Agency guidance is entitled to Skidmore deference. United States v. Mead

Corp., 533 U.S. 218, 227-28 (2001). The amount of deference depends on the

guidance’s persuasiveness. Skidmore v. Swift & Co., 323 U.S. 134,140 (1944).

Chief Counsel Notice CC-2006-019 (Aug. 18, 2006), describes what Appeals must

verify:

Sections 6320(c) and 6330(c)(1) require the appeals officer to obtain verification…that the requirements of any applicable law or

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administrative procedure have been met….The requirements the appeals officer [is] verifying are those things the Code, Treasury Regulations, and the IRM require the Service to do before collection can take place.

(Emphasis added.) Judge Marvel stated this persuasively showed §6330(c)

(1) requires Appeals to verify compliance with any applicable IRMs. Trout, 131

T.C. at 261. Thereafter, Chief Counsel issued Notice CC-2009-010 (Feb. 13, 2009),

replacing and updating Notice CC-2006-019 (Aug. 18, 2006). Citing Trout, that

Notice provided the same advice as in 2006. Chief Counsel subsequently issued

Advice 201212018 (Mar. 23, 2012), which Judge Holmes noted favorably in his

dissent in Armstrong v. Commissioner, 139 T.C. 468,502, n.14 (2012). 14

Skidmore deference to the foregoing CC advice/guidance is required. Davis

v. Commissioner, 716 F.3d 560,569, n.26 (11th Cir. 2013) (private letter rulings are

persuasive authority regarding interpretation of tax statutes); Glass v.

Commissioner, 471 F.3d 698,709 (6th Cir. 2006) (IRM persuasive authority refuting

the Commissioner’s argument); Wells Fargo & Co. & Subs. v. Commissioner, 224

F.3d 874,886 (8th Cir. 2000). Chief Counsel’s consistent interpretation should be

accorded substantial deference under Skidmore. Romano-Murphy, 816 F.3d at 719

The majority did not disagree with Judge Holmes; they simply did not address 14

the Chief Counsel Advice.

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(relying on two Chief Counsel Advices interpreting Title 26). 15

3. The Holding That Applicable IRM Requirements Need Not be Verified is Unsupportable.

The Tax Court stated Appellant “cites no case in which a SO was found to

have abused her discretion” by failing to verify whether an applicable IRM

provision was followed.(App.152). However, the Tax Court: (1) ignored Judge

Marvel’s opinion in Trout and persuasive Chief Counsel advice; (2) did not analyze

the statutory language or purpose or conduct a Chevron (or Skidmore) analysis; (3)

erroneously evaluated the verification issue as a question related to invalidity of

the Notice (App.151,152), instead of reviewing the NOD for abuse of discretion;

(4) misrepresented that IRM §5.11.1.2.2.2 states the date on the Notice “should”

match the mail date (App.152) when it states emphatically that these dates

“MUST” match; (5) ignored the improper verification of compliance with all

applicable laws (§6330(a)(3)(B)); and (6) ignored the significance of the RO’s

testimony that he only follows the IRM. (Facts,p.4).

Instead, the Court cited Anonymous v. Commissioner, 145 T.C. 246,257

(2015) (noting the IRM lacks the force of law and does not create taxpayer rights).

Anonymous, however, involved an issue under §6110(f)(3) having no relevance

The Sixth and Tenth Circuits recognize Appeals’ obligation to verify compliance 15

with all legal and procedural requirements to move forward with the lien or levy. Keller Tank Services II, Inc. v. Commissioner, 848 F.3d 1251,1261 (10th Cir. 2017); Living Care Alternatives of Utica v. Commissioner, 411 F.3d 621,624-25 (6th Cir. 2005).

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here. Moreover, as noted, §6330(c)(1) has the force of law as a statutory mandate

to verify compliance with applicable “administrative procedures.”

The Court also cited Wadleigh v. Commissioner, 134 T.C. 280 (2010), but

then ignored what that court said. Wadleigh reiterated that §6330(c)(1) requires

Appeals obtain verification any applicable administrative procedures were met.

134 T.C. at 295, n.13. Consequently, because petitioner “has questioned whether

[Appeals] followed applicable IRM procedures in making [the] determination, we

examine the IRM procedures.” (Id.)(emphasis added). Only because Wadleigh

concluded the IRM procedures there were not applicable (Id. at 295-96) did

Wadleigh refrain from addressing the question squarely presented here.(Id. at 295,

n.13).

Indisputably, as with the “law” (§6330(a)(3)(B)), IRM §§5.11.1.2.2.2 and

5.1.9.3.2.1(6) are applicable and were not followed. The decision that IRMs are not

subject to §6330(c)(1)’s verification requirement is unsupported by any relevant

authority and is replete with erroneous analysis.

4. The Tax Court Erred in Not Reviewing the NOD for Abuse of Discretion.

Sustaining a proposed levy without proper verification renders the NOD an

abuse of discretion. Freije at 36; Conway at 215.

The taxpayer has the initial burden to establish a prima facie case. Medical

Practice Solutions LLC, T.C.Memo. 2009-214, at *16-17. Where this burden is

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met, the burden shifts to Appellee to show Appeals obtained the requisite

verification. (Id.,*17, n.16).Appellant made a prima facie showing that the Notice

and mail dates did not match and the Notice did not provide its mailing date.

(Facts,p. 3, supra; App.56). This demonstrated Appellant was not given the

required Notice and that it was not properly issued and mailed: (a) in accordance

with law (§6330(a)(3)(B)), or (b) in compliance with mandatory “administrative

procedure.”(IRM §5.11.1.2.2.2). The SO failed to verify compliance with these

provisions or proper issuance and mailing, but nevertheless twice falsely verified

compliance with “all applicable laws and administrative procedures.”(App.251,

252).

The burden, therefore, shifted to Appellee to prove with “competent and

persuasive evidence” that the SO obtained the requisite verification. Butti v.

Commissioner, T.C. Memo. 2008-82, at *3; Medical Practice Solutions LLC v.

Commissioner, T.C. Memo. 2009-214, at *6, n. 16. But the record demonstrates

Appeals did not obtain verification of compliance with §6330(a)(3)(B), IRM

§§5.11.1.2.2.2 or 5.1.9.3.2.1(6). Consequently, Appellee failed to meet its burden

of proving that the required verification was actually carried out, and that the two

boilerplate verifications were/are true.

The RO’s deliberate flouting of applicable law (§6330(a)(3)(B)) and

administrative procedure (IRM §§5.11.1.2.2.2&5.1.9.3.2.1(6)), and Appellant’s

right to be informed of facts critical to the decision to perfect F12153, was not a

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trivial matter. The Court acknowledged if Appellant’s F12153 was untimely, he

was only entitled to an EH, in which case:

[T]he collection period of limitations would not have been suspended during the CDP process, and his tax liabilities in that event would appear to be uncollectable.

(App.143,153).

Thus, the NOD is based on deliberate RO violations and improper

verifications and was required to be reviewed for abuse of discretion but was not.

Consequently, a CPDH was held instead of an EH, and the SOL was deemed

suspended when it should have expired. 16

D. IF MAIL DATE APPLIES, THE NOTICE WAS DEFECTIVE AND IS THUS A NULLITY.

The Tax Court acknowledged Appellant’s contention that the Notice was

invalid, but inexplicably ignored both the uncontradicted facts as to why and the

legal reason as to why. Instead, the Court said the issue was whether the Notice

was written in “simple and non-technical terms” per §6330(a)(3), and claimed a

Notice could not be invalidated for this reason alone.(App.151). While this is

questionable, Appellant’s substantive claim, not addressed by the Court, was/is that

the Notice was defective because it did not inform him of the mail date in any

language.

In the end, the Court held it did not matter whether the Notice was defective,

because there was no prejudice, because Appellant intended a CDPH and Appellee

Argument B.2.h. discusses the prejudice sustained in detail.16

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gave him one. (App.152,153). But as pointed out, the finding of no prejudice is

irreparably inconsistent with: (1) facts clearly showing Appellant intended an

untimely F12153 and acted consistent with that intent, and (2) clear evidence of

prejudice (see Argument B(2)(h), supra) and the Court’s recognition of same.

(App.143,153). Moreover, if intent is somehow relevant, the test under applicable

law was/is intent to act timely or untimely, which was not addressed by the Court.

While Congress did not specify a consequence for non-compliance with

§§6330(a)(3) or (a)(3)(B), it cannot be disputed that compliance with these

provisions goes to the heart of the purpose behind §6330 (and the Taxpayer Bill of

Rights, §7803(a)(3)(A)): to inform taxpayers of critical information necessary to

enable them to respond as they choose to protect their rights. A taxpayer cannot

make an informed choice if he is deprived of the information needed for accurately

calculating timeliness; taxpayer rights are defeated, not protected, when the date

essential to accurate calculation is withheld. Congress’ intent that taxpayers rely

on the information required to be provided to them is thwarted when, like here,

they are expressly directed to rely on a date the IRS says does not apply.

Nor was the defect due to mere neglect or inadvertence. Per IRM

§5.1.10.5(1) (“awareness of taxpayer rights is vitally important to the RO job”), the

RO was aware of and only followed the IRM’s requirements, including

§5.11.1.2.2.2 (2008). Despite this, he knowingly and intentionally disregarded the

mandate that the Notice’s mail date be disclosed by making sure the Notice and

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mail dates matched. The given reason for violating this mandatory procedure (that

compliance “wasn’t warranted” and the RO decided to “save paper and ink”) is

unacceptable in a court of law, as is the SO knowingly ignoring an admitted

irregularity and providing untrue, boilerplate verifications.

These actions constituted major violations and denials of rights granted

taxpayers. The intentional frustration of Congressional intent, and denial of rights

intended for taxpayers’ protection, rendered the Notice defective on its face and,

therefore, a nullity. LG Kendrick, LLC v. Commissioner, 147 T.C. 17,29 (2016)

(defective notice void and of no effect; Commissioner may proceed with collection

only if he subsequently issues a valid notice); Smith v. Commissioner, 124 T.C.

36,44 (2005).

The prejudice sustained was substantial, as demonstrated supra at B(2)(h),

pp. 38-40, and as recognized by the Tax Court (App.143,153; Argument C(4), p.51,

supra).

E. APPELLEE IS ESTOPPED FROM ASSERTING THE MAIL DATE APPLIES AND ALSO ESTOPPED FROM ASSERTING APPELLANT PERFECTED A TIMELY F12153.

Estoppel applies to agencies. Pierce v. SEC, 786 F.3d 1027,1038 (D.C. Cir.

2015); Investors Research Corp. v. SEC, 628 F.2d 168,174, n.34 (D.C. Cir.), cert.

denied, 449 U.S. 982 (1980). The requisite elements include: (1) misrepresentation

or concealment of fact, (2) reasonable reliance to one’s detriment, (3) some

affirmative government misconduct. Acts of commission or omission suffice.

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Estoppel also applies if the government causes an egregiously unfair result. Pierce

at 1038.

This Court has applied estoppel to the IRS. Stockstrom v. Commissioner, 190

F.2d 283,288-89 (D.C. Cir. 1951) (IRS cannot avail itself of taxpayer performance

or non-performance which IRS has itself occasioned; taxpayers expect, and are

entitled to, ordinary fair play from tax officials); Vestal v. Commissioner, 152 F.2d

132,135 (D.C. Cir. 1945) (IRS estopped from assessing taxes against individuals);

particularly applicable herein is Belton v. Commissioner, 562 F.Supp. 30,33 (D.

D.C. 1982) (applying estoppel where taxpayer file lost or destroyed, noting that

taxpayer should not be penalized for improper handling of her claim); compare

also Fredericks v. Commissioner, 126 F.3d 433,444-45 (3rd Cir. 1997) (citing

Stockstrom in upholding estoppel against IRS).

1. Misrepresentations/Concealments.

Two levels of misrepresentation/concealment of important facts occurred

here, each the result of IRS’ affirmative misconduct:

(a) The RO’s flagrant violation of law and procedure in mailing the Notice

knowing it did not provide the right date, and, worse, not caring. Awareness of

taxpayer rights is vitally important to the RO’s job. See, e.g., IRM §5.1.10.5(1));

26 U.S.C. §7803(a)(3)(A) (IRS must execute duties in accord with taxpayer

rights, specifically “the right to be informed.”) Yet the record amply demonstrates

the RO’s lack of concern for violating Appellant’s rights given his disregard for

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those rights, evidenced by his flippant statements that complying with mandatory

procedure “wasn’t warranted,” and his decision instead to “save paper and ink.”

Appellee’s conduct was outrageous given his position and the mandatory dictates

of §§6330(a)(3) and (a)(3)(B) and IRM §5.11.1.2.2.2.(App.57,58).

The Tax Court found no misrepresentation or concealment because

Appellant “would have” noticed a discrepancy between the date on the mailing

envelope and the date on the Notice if he had not thrown away the envelope. (App.

152). This is clearly erroneous, factually and legally. First, Appellant never saw or

possessed the mailing envelope and did not throw it away. (Argument B(2)(g)(3),

p. 35, supra). The Court recognized this (App.144) but then forgot it.(App.152).

Second, this finding presupposes people inspect and keep envelopes in general, a

fact not found and certainly inconsistent with Appellant’s testimony.

The Court’s finding is also legally erroneous. It presupposes that Appellee’s

instruction to rely on the Notice and enclosed documents is incorrect and should

not be there. (App.173,193,198,199,204,350,57,58) There was no reason not to

rely on Appellee’s instructions, yet the Court ignored the stipulation and all these

facts. And in point of fact, §6330(a)(3) specifies what information a taxpayer is to

be receive in the Notice and rely upon. See U.S. v. Beeman, supra (Notice must

give specified time period); Romano-Murphy, supra (timely F12153 must be

within 30-day period provided in the Notice). Section 6330(a)(3) requires the

Notice be in “simple and non-technical terms.” A private postage meter stamp is

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not a “term” of the Notice, and, as demonstrated, if a taxpayer cannot rely on the

Notice and must inspect the mailing envelope to confirm the Notice can be relied

upon, then objectively it is not in “simple and non-technical terms.” The Tax Court

ignored that.

And, Appellee cannot rely on an envelope to fulfill its statutory duty of

notice. Schmidt v. Commonwealth, 433 A.2d 456 (1981) (rejecting contention

envelope’s postmark constitutes notice of mail date); Hanna v. Zoning Board of

Adjustment of Pittsburgh, 437 A.2d 115(1981) (applying Schmidt rule where

taxpayer routinely threw out envelope). The suggestion that the envelope is part of

the statutory notice runs counter to the plain reading of the statute. Section 6330(a)

(2) begins:

The notice required under paragraph (1) shall be (A) given in person; (B) left at the [taxpayer’s] dwelling or usual place of business...; or (C) sent by certified or registered mail, return receipt requested, to [taxpayer’s]…last known address.…

The statute differentiates the Notice from the envelope by offering two

methods of delivery other than mail. Only if a RO elects choice (C) is an envelope

with a date stamp needed, but he must always provide a Notice with a start date for

the 30-day period.

Even if Appellant saw the envelopes, he would only have seen a private

postage meter stamp, which is not evidence of mailing date anyway. Landers v.

State Farm Lloyds, 257 S.W.3d 740,745, n.5 (Tex.App.2008); Lin v.

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Unemployment Comp. Bd. of Review, 735 A.2d 697, 700 (1999) (private postage

meter date-stamp lacks reliability; it is merely the date set in the machine by the

operator, which can be any date).

Finally, assuming Appellant saw the envelopes and noted a discrepancy,

what was he to do? Had he contacted the RO, the RO would have told Appellant to

use the date that the RO used: the date on the Notice! (Facts, p.8, supra). The

TaxCourt clearly erred.

(b) The Forms 12153 were negligently mishandled and were not associated

with the clear postmarks on the envelopes pursuant to §7502 and IRM

§5.1.9.3.2.1(6). The RO never tried to fix the situation he caused. Instead, he

improperly extended the 30-day statutory period for the untimely F12153, treating

both Forms as timely. He did not inform Appellant what happened, instead

wrongly and unfairly assuming Appellant wanted a CDPH for the F12153 that

was unquestionably untimely, because “that’s what most taxpayers want.”(Facts,

pp. 8-9, supra).

The Forms were nevertheless deemed ineffective as “not processable.”(App.

216-218,22). The RO phoned Appellant, leaving a message (App.131,132), but did

not explain the problem with F12153. Appellant wrote back (App.215) for an

explanation. The RO responded (App.216), stating only that F12153 for

1986-1991 was non-processable because it incorrectly listed the tax years.

Unaware of what happened and of the actual mail date, but knowing F12153 for

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1986-1991 was untimely and that timeliness cannot be perfected (App.102,131;

Reg §301.6330-1(c)(1),(c)(2), Q&A-C1(iii) & C7; Q&A-C5 & C9(3), examples

1-3; also §(i)(1)&(2),Q&A-11(iii)), Appellant complied with the RO’s demand by

submitting another F12153 listing the correct years, thinking he was perfecting his

untimely F12153. Appellant, thus, unwittingly perfected and rendered processable

a F12153,which up to then was not processable and had not suspended the SOL.

Thus, it was not the original untimely F12153 that suspended the SOL, but the

unwitting perfection of what was, unbeknownst to Appellant, deemed a timely

F12153.

2. Reliance.

Like any other taxpayer, Appellant had the right to rely on the date he was

provided (and was supposed to rely on) for calculating the 30-day period and

acting on the basis of that calculation. Section 6330 contemplates such reliance.

Taxpayers have nothing else to rely on when they are given just one date and

instructed to use it. No one can count 30 days from an unknown date.

Similarly, Appellant relied upon Appellee’s continued concealment of the

mail date and the several other misrepresentations and concealments as just noted

in 1(b) above, inducing him to perfect what otherwise was non-processable. It was

this unwitting perfection that suspended the SOL based on the RO’s improper,

undisclosed treatment of the untimely F12153 as timely, a situation Appellant

could easily have clarified had he been aware that clarification was needed.

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3. Affirmative Misconduct.

Only some affirmative misconduct is needed. The record amply

demonstrates affirmative misconduct at Appellee’s Collection and Appeals levels.

The RO knowingly and intentionally: (a) refused to follow applicable law and

procedure; (b) offered a flippant and unacceptable excuse; (c) negligently

mishandled Appellant’s Forms; (d) failed to associate the Forms with their

postmarked envelopes; (e) extended the fixed statutory 30-day period for a clearly

untimely F12153, relying on an assumption, not fact; and (f) misrepresented and

concealed important facts in inducing Appellant to unwittingly perfect a non-

processable F12153 he knew was untimely but did not know was treated as timely.

And the SO twice knowingly provided false verifications that Appellee

followed all applicable laws and administrative procedures, and treated an

untimely F12153 as timely on the basis of a mailing date she knew Appellant did

not have.(App.251,252). Before issuing the NOD, still using the Notice date, the

SO disingenuously stated she would treat F12153 as timely to err on the side of

Appellant, when she knew Appellant’s position was exactly the opposite.(Facts, p.

10, supra). She blatantly acted intentionally to prevent the SOL from expiring to

protect IRS’ rights and interests, not Appellant’s.

4. Prejudice.

Appellant has discussed in detail the various ways he was prejudiced by

Appellee’s misrepresentations/concealments. (Argument B(2)(h), pp. 37-39, supra)

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The Tax Court expressly recognized the prejudice to Appellant if F12153 was

untimely. (App.143,153; Argument C(4), pp. 49-51, supra). Appellant has also

addressed each of the reasons cited by the Tax Court for finding no prejudice.

Those findings ignored the real prejudice and were legally erroneous or

inapplicable, failed to consider all the evidence, and were unsupported by the

preponderance of the evidence, or, in certain instances, any evidence.(Argument

B(2)(g), pp. 32-38, supra).

Ultimately, the NOD was based on perfection of an untimely, non-

processable F12153 that was, unbeknownst to Appellant, deemed timely and only

perfected (and the SOL suspended) because of misrepresentation and concealment

of key facts Appellant was entitled to know (§6330(a)(3)(B); IRM §5.11.1.2.2.2;

§7803(a)(3)(A)), causing him to be misled. To conclude Appellant was not

prejudiced by Appellee’s improper acts stands in stark defiance of the clear

preponderance of uncontradicted evidence.

VIII. CONCLUSION

For any or all of the foregoing reasons, the Tax Court’s decision is replete

with clearly erroneous findings, inadequate and incomplete legal analysis, and

clear errors of law. Its decision cannot legitimately be sustained.

Respectfully submitted,

/s/ Scott MacPherson

Attorney for Appellant

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Dated: January 16, 2018

Page ! of !60 62


CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT

1. This document complies with the word limit of Fed. R. App. P. 32(a)(7)(B)

and this Court’s Order of 8/29/17 because, excluding the parts of the document

exempted by Fed. R. App. P. 32(f) Circuit Rule 32(e)(1):

_X_ this document contains 12,997 words [not to exceed 13,000]

___ this brief uses a monospaced typeface and contains [state the number

of] lines of text

2. This document complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because:

__X_ this document has been prepared in a proportionally spaced typeface

using MS Office Word 2016 version 16.0.7766.2099 in 14-point Times New

Roman, or

_____ this document has been prepared in a monospaced typeface using

[state name and version of word-processing program] with [state number of

characters per inch and name of type style].

(s) Scott MacPherson

Attorney for Appellant

Dated: January 16, 2018

Page ! of !61 62


CERTIFICATE OF SERVICE

I hereby certify that on January 16, 2018, I electronically filed the foregoing

OPENING BREIF with the United States Court of Appeals for the District of

Columbia Circuit using the CM/ECF system. All participants who are registered

CM/ECF users will be served by the appellate CM/ECF system.

s/ Scott MacPherson

Page ! of !62 62


Charles J. Weiss v. Commissioner of Internal Revenue Service No. 16-1407

Table of Contents for Addendum of Relevant Statutes, Etc.

Authority Page number

26 U.S.C. § 6330 1

26 U.S.C. § 7803 6

1 C.F.R. § 301.4 8

26 C.F.R. § 301.6330-1 9

IRM 1.11.2.1.1 (1-1-2017) 42

IRM 1.11.2.2 (1-1-2017) 43

IRM 5.1.9.3.2.1 (11-28-2008) 46

IRM 5.1.10.5 (8-21-2006) 52

IRM 5.11.1.2.2.2 (3-21-2008) 53

IRM 8.22.5.3.1 (3-29-2012) 60


26 U.S.C. § 6330

(a) Requirement of notice before levy

(1) In general

No levy may be made on any property or right to property of any person unless the

Secretary has notified such person in writing of their right to a hearing under this

section before such levy is made. Such notice shall be required only once for the

taxable period to which the unpaid tax specified in paragraph (3)(A) relates.

(2) Time and method for notice

The notice required under paragraph (1) shall be—

(A) given in person;

(B) left at the dwelling or usual place of business of such person; or

(C) sent by certified or registered mail, return receipt requested, to such person’s

last known address;

not less than 30 days before the day of the first levy with respect to the amount of

the unpaid tax for the taxable period.

(3) Information included with notice

The notice required under paragraph (1) shall include in simple and nontechnical

terms—

(A) the amount of unpaid tax;

(B) the right of the person to request a hearing during the 30-day period under

paragraph (2); and

Page ! of !1 60


(C) the proposed action by the Secretary and the rights of the person with respect

to such action, including a brief statement which sets forth—

(i) the provisions of this title relating to levy and sale of property;

(ii) the procedures applicable to the levy and sale of property under this title;

(iii) the administrative appeals available to the taxpayer with respect to such levy

and sale and the procedures relating to such appeals;

(iv) the alternatives available to taxpayers which could prevent levy on property

(including installment agreements under section 6159); and

(v) the provisions of this title and procedures relating to redemption of property

and release of liens on property.

(b) Right to fair hearing

(1) In general

If the person requests a hearing in writing 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.

(2) One hearing per period

A person shall be entitled to only one hearing under this section with respect to the

taxable period to which the unpaid tax specified in subsection (a)(3)(A) relates.

(3) Impartial officer

The hearing under this subsection shall be conducted by an officer or employee

who has had no prior involvement with respect to the unpaid tax specified in

Page ! of !2 60


subsection (a)(3)(A) before the first hearing under this section or section 6320. A

taxpayer may waive the requirement of this paragraph.

(c) Matters considered at hearing

In the case of any hearing conducted under this section—

(1) Requirement of investigation

The appeals officer shall at the hearing obtain verification from the Secretary that

the requirements of any applicable law or administrative procedure have been met.

(2) Issues at hearing

(A) In general

(B) The person may raise at the hearing any relevant issue relating to the unpaid

tax or the proposed levy, including—

(i) appropriate spousal defenses;

(ii) challenges to the appropriateness of collection actions; and

(iii) offers of collection alternatives, which may include the posting of a bond, the

substitution of other assets, an installment agreement, or an offer-in-compromise.

(B) Underlying liability

The person may also raise at the hearing challenges to the existence or amount of

the underlying tax liability for any tax period if the person did not receive any

statutory notice of deficiency for such tax liability or did not otherwise have an

opportunity to dispute such tax liability.

(3) Basis for the determination

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The determination by an appeals officer under this subsection shall take into

consideration—

(A) the verification presented under paragraph (1);

(B) the issues raised under paragraph (2); and

(C) whether any proposed collection action balances the need for the efficient

collection of taxes with the legitimate concern of the person that any collection

action be no more intrusive than necessary.

...

...

(e) Suspension of collections and statute of limitations

(1) In general

Except as provided in paragraph (2), if a hearing is requested under subsection (a)

(3)(B), the levy actions which are the subject of the requested hearing and the

running of any period of limitations under section 6502 (relating to collection after

assessment), section 6531 (relating to criminal prosecutions), or section 6532

(relating to other suits) shall be suspended for the period during which such

hearing, and appeals therein, are pending. In no event shall any such period expire

before the 90th day after the day on which there is a final determination in such

hearing. Notwithstanding the provisions of section 7421(a), the beginning of a levy

or proceeding during the time the suspension under this paragraph is in force may

be enjoined by a proceeding in the proper court, including the Tax Court. The Tax

Page ! of !4 60


Court shall have no jurisdiction under this paragraph to enjoin any action or

proceeding unless a timely appeal has been filed under subsection (d)(1) and then

only in respect of the unpaid tax or proposed levy to which the determination being

appealed relates.

...

...

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26 U.S.C. § 7803

(a) Commissioner of Internal Revenue

(1) Appointment

(A) In general

There shall be in the Department of the Treasury a Commissioner of Internal

Revenue who shall be appointed by the President, by and with the advice and

consent of the Senate. Such appointment shall be made from individuals who,

among other qualifications, have a demonstrated ability in management.

(B) ...

(C) ...

(D) ...

(E) ...

(2) ...

(3) Execution of duties in accord with taxpayer rights

In discharging his duties, the Commissioner shall ensure that employees of the

Internal Revenue Service are familiar with and act in accord with taxpayer rights as

afforded by other provisions of this title, including—

(A) the right to be informed,

(B) the right to quality service,

(C) the right to pay no more than the correct amount of tax,

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(D) the right to challenge the position of the Internal Revenue Service and be

heard,

(E) the right to appeal a decision of the Internal Revenue Service in an independent

forum,

(F) the right to finality,

(G) the right to privacy,

(H) the right to confidentiality,

(I) the right to retain representation, and

(J) the right to a fair and just tax system.

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1 CFR 301.4

Activities.

...

...

(d) For purposes of this section:

(1) “Administrative program” includes a Federal function which involves

protection of the public interest and the determination of rights, privileges, and

obligations of private persons through rulemaking, adjudication, licensing, or

investigation, except that it does not include a military or foreign affairs

function of the United States; and

(2) “Administrative procedure” means procedure used in carrying out an

administrative program and is to be broadly construed to include any aspect of

agency organization, procedure, or management which may affect the equitable

consideration of public and private interests, the fairness of agency decisions,

the speed of agency action, and the relationship of operating methods to later

judicial review, but does not include the scope of agency responsibility as

established by law or matters of substantive policy committed by law to agency

discretion.

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26 CFR 301.6330-1

Notice and opportunity for hearing prior to levy.

(a) Notification -

(1) In general.

Except as specified in paragraph (a)(2) of this section, the Commissioner, or his or

her delegate (the Commissioner), will prescribe procedures to provide persons

upon whose property or rights to property the IRS intends to levy (hereinafter

referred to as the taxpayer) on or after January 19, 1999, notice of that intention

and to give them the right to, and the opportunity for, a pre-levy Collection Due

Process (CDP) hearing with the Internal Revenue Service (IRS) Office of Appeals

(Appeals). This pre-levy Collection Due Process Hearing Notice (CDP Notice)

must be given in person, left at the dwelling or usual place of business of the

taxpayer, or sent by certified or registered mail, return receipt requested, to the

taxpayer's last known address. For further guidance regarding the definition of last

known address, see § 301.6212-2.

(2) Exceptions -

(i) state tax refunds.

Section 6330(f) does not require the Commissioner to provide the taxpayer with

notification of the taxpayer's right to a CDP hearing prior to issuing a levy to

collect state tax refunds owing to the taxpayer. However, the Commissioner will

prescribe procedures to give the taxpayer notice of the right to, and the opportunity

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for, a CDP hearing with Appeals with respect to any such levy issued on or after

January 19, 1999, within a reasonable time after the levy has occurred. The

notification required to be given following a levy on a state tax refund is referred to

as a post-levy CDP Notice.

(ii) Jeopardy.

Section 6330(f) does not require the Commissioner to provide the taxpayer with

notification of the taxpayer's right to a CDP hearing prior to a levy when there has

been a determination that collection of the tax is in jeopardy. However, the

Commissioner will prescribe procedures to provide notice of the right to, and the

opportunity for, a CDP hearing with Appeals to the taxpayer with respect to any

such levy issued on or after January 19, 1999, within a reasonable time after the

levy has occurred. The notification required to be given following a jeopardy levy

also is referred to as post-levy CDP Notice.

(3) Questions and answers.

The questions and answers illustrate the provisions of this paragraph (a) as follows:

Q-A1. Who is the person to be notified under section 6330?

A-A1. Under section 6330(a)(1), a pre-levy or post-levy CDP Notice is required to

be given only to the person whose property or right to property is intended to be

levied upon, or, in the case of a levy made on a state tax refund or a jeopardy levy,

the person whose property or right to property was levied upon. The person

described in section 6330(a)(1) is the same person described in section 6331(a) -

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i.e., the person liable to pay the tax due after notice and demand who refuses or

neglects to pay (referred to here as the taxpayer). A pre-levy or post-levy CDP

Notice therefore will be given only to the taxpayer.

Q-A2. Will the IRS give notification to a known nominee of, a person holding

property of, or a person who holds property subject to a lien with respect to, the

taxpayer of the IRS' intention to issue a levy?

A-A2. No. Such a person is not the person described in section 6331(a)(1), but such

persons have other remedies. See A-B5 of paragraph (b)(2) of this section.

Q-A3. Will the IRS give notification for each tax and tax period it intends to

include or has included in a levy issued on or after January 19, 1999?

A-A3. Yes. The notification of an intent to levy or of the issuance of a jeopardy or

state tax refund levy will specify each tax and tax period that will be or was

included in the levy.

Q-A4. Will the IRS give notification to a taxpayer with respect to levies for a tax

and tax period issued on or after January 19, 1999, even though the IRS had issued

a levy prior to January 19, 1999, with respect to the same tax and tax period?

A-A4. Yes. The IRS will provide appropriate pre-levy or post-levy notification to a

taxpayer regarding the first levy it intends to issue or has issued on or after January

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19, 1999, with respect to a tax and tax period, even though it had issued a levy with

respect to that same tax and tax period prior to January 19, 1999.

Q-A5. When will the IRS provide this notice?

A-A5. Beginning on January 19, 1999, the IRS will give a pre-levy CDP Notice to

the taxpayer of the IRS' intent to levy on property or rights to property, other than

in state tax refund and jeopardy levy situations, at least 30 days prior to the first

such levy with respect to a tax and tax period. If the taxpayer has not received a

pre-levy CDP Notice and the IRS levies on a state tax refund or issues a jeopardy

levy on or after January 19, 1999, the IRS will provide a post-levy CDP Notice to

the taxpayer within a reasonable time after that levy.

Q-A6. What must a pre-levy CDP Notice include?

A-A6. Pursuant to section 6330(a)(3), a pre-levy CDP Notice must include, in

simple and nontechnical terms:

(i) The amount of the unpaid tax.

(ii) Notification of the right to request a CDP hearing.

(iii) A statement that the IRS intends to levy.

(iv) The taxpayer's rights with respect to the levy action, including a brief

statement that sets forth -

(A) The statutory provisions relating to the levy and sale of property;

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(B) The procedures applicable to the levy and sale of property;

(C) The administrative appeals available to the taxpayer with respect to the levy

and sale and the procedures relating to those appeals;

(D) The alternatives available to taxpayers that could prevent levy on the property

(including installment agreements); and

(E) The statutory provisions and the procedures relating to the redemption of

property and the release of liens on property.

Q-A7. What must a post-levy CDP Notice include?

A-A7. A post-levy CDP Notice must include, in simple and nontechnical terms:

(i) The amount of the unpaid tax.

(ii) Notification of the right to request a CDP hearing.

(iii) A statement that the IRS has levied upon the taxpayer's state tax refund or has

made a jeopardy levy on property or rights to property of the taxpayer, as

appropriate.

(iv) The taxpayer's rights with respect to the levy action, including a brief

statement that sets forth -

(A) The statutory provisions relating to the levy and sale of property;

(B) The procedures applicable to the levy and sale of property;

(C) The administrative appeals available to the taxpayer with respect to the levy

and sale and the procedures relating to those appeals;

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(D) The alternatives available to taxpayers that could prevent any further levies on

the taxpayer's property (including installment agreements); and

(E) The statutory provisions and the procedures relating to the redemption of

property and the release of liens on property.

Q-A8. How will this pre-levy or post-levy notification under section 6330 be

accomplished?

A-A8. The IRS will notify the taxpayer by means of a pre-levy CDP Notice or a

post-levy CDP Notice, as appropriate. The additional information the IRS is

required to provide, together with Form 12153, Request for a Collection Due

Process Hearing, will be included with the CDP Notice.

(i) The IRS may effect delivery of a pre-levy CDP Notice (and accompanying

materials) in one of three ways:

(A) By delivering the notice personally to the taxpayer.

(B) By leaving the notice at the taxpayer's dwelling or usual place of business.

(C) By mailing the notice to the taxpayer at the taxpayer's last known address by

certified or registered mail, return receipt requested.

(ii) The IRS may effect delivery of a post-levy CDP Notice (and accompanying

materials) in one of three ways:

(A) By delivering the notice personally to the taxpayer.

(B) By leaving the notice at the taxpayer's dwelling or usual place of business.

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(C) By mailing the notice to the taxpayer at the taxpayer's last known address by

certified or registered mail.

Q-A9. What are the consequences if the taxpayer does not receive or accept the

notification which was properly left at the taxpayer's dwelling or usual place of

business, or properly sent by certified or registered mail, return receipt requested,

to the taxpayer's last known address?

A-A9. Notification properly sent 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 within which the taxpayer may request a CDP hearing. See paragraph (c) of

this section for when a request for a CDP hearing must be filed. Actual receipt is

not a prerequisite to the validity of the CDP Notice.

Q-A10. 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 date of the CDP Notice?

A-A10. 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 provide the taxpayer with an opportunity to request a CDP hearing. Substitute

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CDP Notices are discussed in Q&A-B3 of paragraph (b)(2) and Q&A-C8 of

paragraph (c)(2) of this section.

(4) Examples. The following examples illustrate the principles of this paragraph

(a):

Example 1.

Prior to January 19, 1999, the IRS issues a continuous levy on a taxpayer's wages

and a levy on that taxpayer's fixed right to future payments. The IRS is not

required to release either levy on or after January 19, 1999, until the requirements

of section 6343(a)(1) are met. The taxpayer is not entitled to a CDP Notice or a

CDP hearing under section 6330 with respect to either levy because both levy

actions were initiated prior to January 19, 1999.

Example 2.

The same facts as in Example 1, except the IRS intends to levy upon a taxpayer's

bank account on or after January 19, 1999. The taxpayer is entitled to a pre-levy

CDP Notice with respect to this proposed new levy.

(b) Entitlement to a CDP hearing -

(1) In general. A taxpayer is entitled to one CDP hearing with respect to the unpaid

tax and tax periods covered by the pre-levy or post-levy CDP Notice provided to

the taxpayer. The taxpayer must request the CDP hearing within the 30-day

period commencing on the day after the date of the CDP Notice.

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(2) Questions and answers. The questions and answers illustrate the provisions of

this paragraph (b) as follows:

Q-B1. Is the taxpayer entitled to a CDP hearing where a levy for state tax refunds is

issued on or after January 19, 1999, even though the IRS had previously issued

other levies prior to January 19, 1999, seeking to collect the taxes owed for the

same period?

A-B1. Yes. The taxpayer is entitled to a CDP hearing under section 6330 for the

type of tax and tax periods set forth in the state tax refund levy issued on or after

January 19, 1999.

Q-B2. Is the taxpayer entitled to a CDP hearing when the IRS, more than 30 days

after issuance of a CDP Notice under section 6330 with respect to the unpaid tax

and periods, provides subsequent notice to that taxpayer that the IRS intends to

levy on property or rights to property of the taxpayer for the same tax and tax

periods shown on the CDP Notice?

A-B2. No. Under section 6330, only the first pre-levy or post-levy CDP Notice

with respect to the unpaid tax and tax periods entitles the taxpayer to request a

CDP hearing. If the taxpayer does not timely request a CDP hearing with Appeals

following that first notification, the taxpayer foregoes the right to a CDP hearing

with Appeals and judicial review of Appeals' determination with respect to levies

relating to that tax and tax period. The IRS generally provides additional notices or

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reminders (reminder notifications) to the taxpayer of its intent to levy when no

collection action has occurred within 180 days of a proposed levy. Under such

circumstances, a taxpayer may request an equivalent hearing as described in

paragraph (i) of this section.

Q-B3. When the IRS provides a taxpayer with a substitute CDP Notice and the

taxpayer timely requests a CDP hearing, is the taxpayer entitled to a CDP Hearing

before Appeals?

A-B3. Yes. Unless the taxpayer provides the IRS a written withdrawal of the

request that Appeals conduct a CDP hearing, the taxpayer is entitled to a CDP

hearing before Appeals. Following the hearing, Appeals will issue a Notice of

Determination, and the taxpayer is entitled to seek judicial review of that Notice of

Determination.

Q-B4. If the IRS sends a second CDP Notice under section 6330 (other than a

substitute CDP Notice) for a tax period and with respect to an unpaid tax for which

a CDP Notice under section 6330 was previously sent, is the taxpayer entitled to a

section 6330 CDP hearing based on the second CDP Notice?

A-B4. No. The taxpayer is entitled to only one CDP hearing under section 6330

with respect to the tax and tax period. The taxpayer must request the CDP hearing

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within 30 days of the date of the first CDP Notice provided for that tax and tax

period.

Q-B5. Will the IRS give pre-levy or post-levy CDP Notices to known nominees of,

persons holding property of, or persons holding property subject to a lien with

respect to the taxpayer?

A-B5. No. Such person is not the person described in section 6331(a) and is,

therefore, not entitled to a CDP hearing or an equivalent hearing (as discussed in

paragraph (i) of this section). Such person, however, may seek reconsideration by

the IRS office collecting the tax, assistance from the National Taxpayer Advocate,

or an administrative hearing before Appeals under its Collection Appeals Program.

However, any such administrative hearing would not be a CDP hearing under

section 6330 and any determination or decision resulting from the hearing would

not be subject to judicial review.

(3) Example. The following example illustrates the principles of this paragraph (b):

Example.

Federal income tax liability for 1997 is assessed against individual D. D buys an

asset and puts it in individual E's name. The IRS gives D a CDP Notice of intent to

levy with respect to the 1997 tax liability. The IRS will not notify E of its intent to

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levy. The IRS is not required to notify E of its intent to levy although E holds

property of individual D. E is not the taxpayer.

(c) Requesting a CDP hearing -

(1) In general.

When a taxpayer is entitled to a CDP hearing under section 6330, the CDP hearing

must be requested during the 30-day period that commences the day after the date

of the CDP Notice.

(2) Questions and answers. The questions and answers illustrate the provisions of

this paragraph (c) as follows:

Q-C1. What must a taxpayer do to obtain a CDP hearing?

A-C1.

(i) The taxpayer must make a request in writing for a CDP hearing. The request for

a CDP hearing shall include the information and signature specified in A-

C1(ii) of this paragraph (c)(2). See A-D7 and A-D8 of paragraph (d)(2).

(ii) The written request for a CDP hearing must be dated and must include the

following:

(A) The taxpayer's name, address, daytime telephone number (if any), and taxpayer

identification number (e.g., SSN, ITIN or EIN).

(B) The type of tax involved.

(C) The tax period at issue.

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(D) A statement that the taxpayer requests a hearing with Appeals concerning the

proposed levy.

(E) The reason or reasons why the taxpayer disagrees with the proposed levy.

(F) The signature of the taxpayer or the taxpayer's authorized representative.

(iii) If the IRS receives a timely written request for CDP hearing that does not

satisfy the requirements set forth in A-C1(ii) of this paragraph (c)(2), the IRS

will make a reasonable attempt to contact the taxpayer and request that the

taxpayer comply with the unsatisfied requirements. The taxpayer must

perfect any timely written request for a CDP hearing that does not satisfy the

requirements set forth in A-C1(ii) of this paragraph (c)(2) within a reasonable

period of time after a request from the IRS.

(iv) Taxpayers are encouraged to use Form 12153, “Request for a Collection Due

Process Hearing,” in requesting a CDP hearing so that the request can be

readily identified and forwarded to Appeals. Taxpayers may obtain a copy of

Form 12153 by contacting the IRS office that issued the CDP Notice, by

downloading a copy from the IRS Internet site, http://www.irs.gov/pub/irs-

pdf/f12153.pdf, or by calling, toll-free, 1-800-829-3676.

(v) The taxpayer must affirm any timely written request for a CDP hearing which is

signed or alleged to have been signed on the taxpayer's behalf by the

taxpayer's spouse or other unauthorized representative by filing, within a

reasonable period of time after a request from the IRS, a signed, written

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affirmation that the request was originally submitted on the taxpayer's behalf.

If the affirmation is filed within a reasonable period of time after a request,

the timely CDP hearing request will be considered timely with respect to the

non-signing taxpayer. If the affirmation is not filed within a reasonable period

of time after a request, the CDP hearing request will be denied with respect to

the non-signing taxpayer.

Q-C2. Must the request for the CDP hearing be in writing?

A-C2. Yes. There are several reasons why the request for a CDP hearing must be in

writing. The filing of a timely request for a CDP hearing is the first step in what

may result in a court proceeding. A written request will provide proof that the CDP

hearing was requested and thus permit the court to verify that it has jurisdiction

over any subsequent appeal of the Notice of Determination issued by Appeals. In

addition, the receipt of the written request will establish the date on which the

periods of limitation under section 6502 (relating to collection after assessment),

section 6531 (relating to criminal prosecutions), and section 6532 (relating to suits)

are suspended as a result of the CDP hearing and any judicial appeal. Moreover,

because the IRS anticipates that taxpayers will contact the IRS office that issued

the CDP Notice for further information or assistance in filling out Form 12153, or

to attempt to resolve their liabilities prior to going through the CDP hearing

process, the requirement of a written request should help prevent any

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misunderstanding as to whether a CDP hearing has been requested. If the

information requested on Form 12153 is furnished by the taxpayer, the written

request also will help to establish the issues for which the taxpayer seeks a

determination by Appeals.

Q-C3. When must a taxpayer request a CDP hearing with respect to a CDP Notice

issued under section 6330?

A-C3. A taxpayer must submit a written request for a CDP hearing within the 30-

day period commencing the day after the date of the CDP Notice issued under

section 6330. This period is slightly different from the period for submitting a

written request for a CDP hearing with respect to a CDP Notice issued under

section 6320. For a CDP Notice issued under section 6320, a taxpayer must submit

a written request for a CDP hearing within the 30-day period commencing the day

after the end of the five business day period following the filing of the notice of

federal tax lien (NFTL).

Q-C4. How will the timeliness of a taxpayer's written request for a CDP hearing be

determined?

A-C4. The rules and regulations under section 7502 and section 7503 will apply to

determine the timeliness of the taxpayer's request for a CDP hearing, if properly

transmitted and addressed as provided in A-C6 of this paragraph (c)(2).

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Q-C5. Is the 30-day period within which a taxpayer must make a request for a CDP

hearing extended because the taxpayer resides outside the United States?

A-C5. No. Section 6330 does not make provision for such a circumstance.

Accordingly, all taxpayers who want a CDP hearing under section 6330 must

request such a hearing within the 30-day period commencing the day after the date

of the CDP Notice.

Q-C6. Where must the written request for a CDP hearing be sent?

A-C6. The written request for a CDP hearing must be sent, or hand delivered (if

permitted), to the IRS office and address as directed on the CDP Notice. If the

address of that office does not appear on the CDP Notice, the taxpayer should

obtain the address of the office to which the written request should be sent or hand

delivered by calling, toll-free, 1-800-829-1040 and providing the taxpayer's


Q-C7. What will happen if the taxpayer does not request a CDP hearing in writing

within the 30-day period commencing on the day after the date of the CDP Notice

issued under section 6330?

A-C7. If the taxpayer does not request a CDP hearing in writing within the 30-day

period that commences on the day after the date of the CDP Notice, the taxpayer

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foregoes the right to a CDP hearing under section 6330 with respect to the unpaid

tax and tax periods shown on the CDP Notice. A written request submitted within

the 30-day period that does not satisfy the requirements set forth in A-C1(ii)(A),

(B), (C), (D) or (F) of this paragraph (c)(2) is considered timely if the request is

perfected within a reasonable period of time pursuant to A-C1(iii) of this paragraph

(c)(2). If the request for CDP hearing is untimely, either because the request was

not submitted within the 30-day period or not perfected within the reasonable

period provided, the taxpayer will be notified of the untimeliness of the request and

offered an equivalent hearing. In such cases, the taxpayer may obtain an equivalent

hearing without submitting an additional request. See paragraph (i) of this section.

Q-C8. When must a taxpayer request a CDP hearing with respect to a substitute

CDP Notice?

A-C8. A CDP hearing with respect to a substitute CDP Notice must be requested in

writing by the taxpayer prior to the end of the 30-day period commencing the day

after the date of the substitute CDP Notice.

Q-C9. Can taxpayers attempt to resolve the matter of the proposed levy with an

officer or employee of the IRS office collecting the tax liability stated on the CDP

Notice either before or after requesting a CDP hearing?

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A-C9. Yes. Taxpayers are encouraged to discuss their concerns with the IRS office

collecting the tax, either before or after they request a CDP hearing. If such a

discussion occurs before a request is made for a CDP hearing, the matter may be

resolved without the need for Appeals consideration. However, these discussions

do not suspend the running of the 30-day period within which the taxpayer is

required to request a CDP hearing, nor do they extend that 30-day period. If

discussions occur after the request for a CDP hearing is filed and the taxpayer

resolves the matter with the IRS office collecting the tax, the taxpayer may

withdraw in writing the request that a CDP hearing be conducted by Appeals. The

taxpayer can also waive in writing some or all of the requirements regarding the

contents of the Notice of Determination.

(3) Examples.

The following examples illustrate the principles of this paragraph (c):

Example 1.

The IRS mails a CDP Notice of intent to levy to individual A's last known address

on June 24, 1999. Individual A has until July 26, 1999, a Monday, to request a CDP

hearing. The 30-day period within which individual A may request a CDP hearing

begins on June 25, 1999. Because the 30-day period expires on July 24, 1999, a

Saturday, individual A's written request for a CDP hearing will be considered

timely if it is properly transmitted and addressed to the IRS in accordance with

section 7502 and the regulations thereunder no later than July 26, 1999.

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Example 2.

Same facts as in Example 1, except that individual A is on vacation, outside the

United States, or otherwise does not receive or read the CDP Notice until July 19,

1999. As in Example 1, individual A has until July 26, 1999, to request a CDP

hearing. If individual A does not request a CDP hearing, individual A may request

an equivalent hearing as to the levy at a later time. The taxpayer should make a

request for an equivalent hearing at the earliest possible time.

Example 3.

Same facts as in Example 2, except that individual A does not receive or read the

CDP Notice until after July 26, 1999, and does not request a hearing by July 26,

1999. Individual A is not entitled to a CDP hearing. Individual A may request an

equivalent hearing as to the levy at a later time. The taxpayer should make a

request for an equivalent hearing at the earliest possible time.

Example 4.

Same facts as in Example 1, except the IRS determines that the CDP Notice mailed

on June 24, 1999, was not mailed to individual A's last known address. As soon as

practicable after making this determination, the IRS will mail a substitute CDP

Notice to individual A at individual A's last known address, hand deliver the

substitute CDP Notice to individual A, or leave the substitute CDP Notice at

individual A's dwelling or usual place of business. Individual A will have 30 days

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commencing on the day after the date of the substitute CDP Notice within which to

request a CDP hearing.

(d) Conduct of CDP hearing -

(1) In general.

If a taxpayer requests a CDP hearing under section 6330(a)(3)(B) (and does not

withdraw that request), the CDP hearing will be held with Appeals. The taxpayer is

entitled to only one CDP hearing under section 6330 with respect to the unpaid tax

and tax periods shown on the CDP Notice. To the extent practicable, the CDP

hearing requested under section 6330 will be held in conjunction with any CDP

hearing the taxpayer requests under section 6320. A CDP hearing will be conducted

by an employee or officer of Appeals who, prior to the first CDP hearing under

section 6320 or section 6330, has had no involvement with respect to the tax for

the tax periods to be covered by the hearing, unless the taxpayer waives this

requirement.

...

...

(e) Matters considered at CDP hearing -

(1) In general.

Appeals will determine the timeliness of any request for a CDP hearing that is

made by a taxpayer. Appeals has the authority to determine the validity,

sufficiency, and timeliness of any CDP Notice given by the IRS and of any request

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for a CDP hearing that is made by a taxpayer. Prior to issuance of a determination,

Appeals is required to obtain verification from the IRS office collecting the tax that

the requirements of any applicable law or administrative procedure with respect to

the proposed levy 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 proposed levy, and offers of collection

alternatives. The taxpayer also may raise challenges to the existence or amount of

the underlying liability, including a liability reported on a self-filed return, for any

tax period specified 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 the tax liability. Finally, the taxpayer may not raise an issue that was

raised and considered at a previous CDP hearing under section 6320 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.

...

...

(f) Judicial review of Notice of Determination -

(1) In general.

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Unless the taxpayer provides the IRS a written withdrawal of the request that

Appeals conduct a CDP hearing, Appeals is required to issue a Notice of

Determination in all cases where a taxpayer has timely requested a CDP hearing.

The taxpayer may appeal such determinations made by Appeals within the 30-day

period commencing the day after the date of the Notice of Determination to the Tax

Court.


The questions and answers illustrate the provisions of this paragraph (f) as follows:

Q-F1. What must a taxpayer do to obtain judicial review of a Notice of

Determination?

A-F1. Subject to the jurisdictional limitations described in A-F2 of this paragraph

(f)(2), the taxpayer must, within the 30-day period commencing the day after the

date of the Notice of Determination, appeal the determination by Appeals to the

Tax Court.

Q-F2. With respect to the relief available to the taxpayer under section 6015, what

is the time frame within which a taxpayer may seek Tax Court review of Appeals'

determination following a CDP hearing?

A-F2. If the taxpayer seeks Tax Court review not only of Appeals' denial of relief

under section 6015, but also of relief with respect to other issues raised in the CDP

hearing, the taxpayer should request Tax Court review within the 30-day period

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commencing the day after the date of the Notice of Determination. If the taxpayer

only seeks Tax Court review of Appeals' denial of relief under section 6015, the

taxpayer should request review by the Tax Court, as provided by section 6015(e),

within 90 days of Appeals' determination. If a request for Tax Court review is filed

after the 30-day period for seeking judicial review under section 6330, then only

the taxpayer's section 6015 claims may be reviewable by the Tax Court.

Q-F3. What issue or issues may the taxpayer raise before the Tax Court if the

taxpayer disagrees with the Notice of Determination?

A-F3. In seeking Tax Court review of a Notice of Determination, the taxpayer can

only ask the court to consider an issue, including a challenge to the underlying tax

liability, that was properly raised in the taxpayer's CDP hearing. An issue is not

properly raised if the taxpayer fails to request consideration of the issue by

Appeals, or if consideration is requested but the taxpayer fails to present to

Appeals any evidence with respect to that issue after being given a reasonable

opportunity to present such evidence.

Q-F4. What is the administrative record for purposes of Tax Court review?

A-F4. The case file, including the taxpayer's request for hearing, any other written

communications and information from the taxpayer or the taxpayer's authorized

representative submitted in connection with the CDP hearing, notes made by an

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Appeals officer or employee of any oral communications with the taxpayer or the

taxpayer's authorized representative, memoranda created by the Appeals officer or

employee in connection with the CDP hearing, and any other documents or

materials relied upon by the Appeals officer or employee in making the

determination under section 6330(c)(3), will constitute the record in the Tax Court

review of the Notice of Determination issued by Appeals.

(g) Effect of request for CDP hearing and judicial review on periods of limitation

and collection activity -

(1) In general.

The periods of limitation under section 6502 (relating to collection after

assessment), section 6531 (relating to criminal prosecutions), and section 6532

(relating to suits) are suspended until the date the IRS receives the taxpayer's

written withdrawal of the request for a CDP hearing by Appeals or the

determination resulting from the CDP hearing becomes final by expiration of the

time for seeking judicial review or the exhaustion of any rights to appeals

following judicial review. In no event shall any of these periods of limitation expire

before the 90th day after the date on which the IRS receives the taxpayer's written

withdrawal of the request that Appeals conduct a CDP hearing or the Notice of

Determination with respect to such hearing becomes final upon either the

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expiration of the time for seeking judicial review or upon exhaustion of any rights

to appeals following judicial review.


The questions and answers illustrate the provisions of this paragraph (g) as

follows:

Q-G1. For what period of time will the periods of limitation under section 6502,

section 6531, and section 6532 remain suspended if the taxpayer timely requests a

CDP hearing concerning a pre-levy or post-levy CDP Notice?

A-G1. The suspension period commences on the date the IRS receives the

taxpayer's written request for a CDP hearing. The suspension period continues until

the IRS receives a written withdrawal by the taxpayer of the request for a CDP

hearing or the Notice of Determination resulting from the CDP hearing becomes

final upon either the expiration of the time for seeking judicial review or upon

exhaustion of any rights to appeals following judicial review. In no event shall any

of these periods of limitation expire before the 90th day after the day on which

there is a final determination with respect to such hearing. The periods of limitation

that are suspended under section 6330 are those which apply to the taxes and the

tax period or periods to which the CDP Notice relates.

Q-G2. For what period of time will the periods of limitation under section 6502,

section 6531, and section 6532 be suspended if the taxpayer does not request a

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CDP hearing concerning the CDP Notice, or the taxpayer requests a CDP hearing,

but his request is not timely?

A-G2. Under either of these circumstances, section 6330 does not provide for a

suspension of the periods of limitation.

Q-G3. What, if any, enforcement actions can the IRS take during the suspension

period?

A-G3. Section 6330(e) provides for the suspension of the periods of limitation

discussed in paragraph (g)(1) of these regulations. Section 6330(e) also provides

that levy actions that are the subject of the requested CDP hearing under that

section shall be suspended during the same period. The IRS, however, may levy for

other taxes and periods not covered by the CDP Notice if the CDP requirements

under section 6330 for those taxes and periods have been satisfied. The IRS also

may file NFTLs for tax periods and taxes, whether or not covered by the CDP

Notice issued under section 6330, and may take other non-levy collection actions

such as initiating judicial proceedings to collect the tax shown on the CDP Notice

or offsetting overpayments from other periods, or of other taxes, against the tax

shown on the CDP Notice. Moreover, the provisions in section 6330 do not apply

when the IRS levies for the tax and tax period shown on the CDP Notice to collect

a state tax refund due the taxpayer, or determines that collection of the tax is in

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jeopardy. Finally, section 6330 does not prohibit the IRS from accepting any

voluntary payments made for the tax and tax period stated on the CDP Notice.

(3) Examples.

The following examples illustrate the principles of this paragraph (g):

Example 1.

The period of limitation under section 6502 with respect to the taxpayer's tax

period listed in the CDP Notice will expire on August 1, 1999. The IRS sent a CDP

Notice to the taxpayer on April 30, 1999. The taxpayer timely requested a CDP

hearing. The IRS received this request on May 15, 1999. Appeals sends the

taxpayer its determination on June 15, 1999. The taxpayer timely seeks judicial

review of that determination. The period of limitation under section 6502 would be

suspended from May 15, 1999, until the determination resulting from that hearing

becomes final by expiration of the time for seeking review or reconsideration

before the Tax Court, plus 90 days.

Example 2.

Same facts as in Example 1, except the taxpayer does not seek judicial review of

Appeals' determination. Because the taxpayer requested the CDP hearing when

fewer than 90 days remained on the period of limitation, the period of limitation

will be extended to October 13, 1999 (90 days from July 15, 1999).

...

...

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(i) Equivalent hearing -

(1) In general.

A taxpayer who fails to make a timely request for a CDP hearing is not entitled to a

CDP hearing. Such a taxpayer may nevertheless request an administrative hearing

with Appeals, which is referred to herein as an “equivalent hearing.” The

equivalent hearing will be held by Appeals and generally will follow Appeals

procedures for a CDP hearing. Appeals will not, however, issue a Notice of

Determination. Under such circumstances, Appeals will issue a Decision Letter.


The questions and answers illustrate the provisions of this paragraph (i) as follows:

Q-I1. What must a taxpayer do to obtain an equivalent hearing?

A-I1.

(i) A request for an equivalent hearing must be made in writing. A written request

in any form that requests an equivalent hearing will be acceptable if it

includes the information and signature required in A-I1(ii) of this paragraph

(i)(2).

(ii) The request must be dated and must include the following:

(A) The taxpayer's name, address, daytime telephone number (if any), and taxpayer


(B) The type of tax involved.

(C) The tax period at issue.

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(D) A statement that the taxpayer is requesting an equivalent hearing with Appeals

concerning the levy.

(E) The reason or reasons why the taxpayer disagrees with the proposed levy.

(F) The signature of the taxpayer or the taxpayer's authorized representative.

(iii) The taxpayer must perfect any timely written request for an equivalent hearing

that does not satisfy the requirements set forth in A-I1(ii) of this paragraph (i)

(2) within a reasonable period of time after a request from the IRS. If the

requirements are not satisfied within a reasonable period of time, the

taxpayer's equivalent hearing request will be denied.

(iv) The taxpayer must affirm any timely written request for an equivalent hearing

that is signed or alleged to have been signed on the taxpayer's behalf by the

taxpayer's spouse or other unauthorized representative, and that otherwise

meets the requirements set forth in A-I1(ii) of this paragraph (i)(2), by filing,

within a reasonable period of time after a request from the IRS, a signed

written affirmation that the request was originally submitted on the taxpayer's

behalf. If the affirmation is filed within a reasonable period of time after a

request, the timely equivalent hearing request will be considered timely with

respect to the non-signing taxpayer. If the affirmation is not filed within a

reasonable period of time, the equivalent hearing request will be denied with

respect to the non-signing taxpayer.

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Q-I2. What issues will Appeals consider at an equivalent hearing?

A-I2. In an equivalent hearing, Appeals will consider the same issues that it would

have considered at a CDP hearing on the same matter.

Q-I3. Are the periods of limitation under sections 6502, 6531, and 6532 suspended

if the taxpayer does not timely request a CDP hearing and is subsequently given an

equivalent hearing?

A-I3. No. The suspension period provided for in section 6330(e) relates only to

hearings requested within the 30-day period that commences the day following the

date of the pre-levy or post-levy CDP Notice, that is, CDP hearings.

Q-I4. Will collection action be suspended if a taxpayer requests and receives an

equivalent hearing?

A-I4. Collection action is not required to be suspended. Accordingly, the decision

to take collection action during the pendency of an equivalent hearing will be

determined on a case-by-case basis. Appeals may request the IRS office with

responsibility for collecting the taxes to suspend all or some collection action or to

take other appropriate action if it determines that such action is appropriate or

necessary under the circumstances.

Q-I5. What will the Decision Letter state?

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A-I5. The Decision Letter will generally contain the same information as a Notice

of Determination.

Q-I6. Will a taxpayer be able to obtain Tax Court review of a decision made by

Appeals with respect to an equivalent hearing?

A-I6. Section 6330 does not authorize a taxpayer to appeal the decision of Appeals

with respect to an equivalent hearing. A taxpayer may under certain circumstances

be able to seek Tax Court review of Appeals' denial of relief under section 6015.

Such review must be sought within 90 days of the issuance of Appeals'

determination on those issues, as provided by section 6015(e).

Q-I7. When must a taxpayer request an equivalent hearing with respect to a CDP

Notice issued under section 6330?

A-I7. A taxpayer must submit a written request for an equivalent hearing within the

one-year period commencing the day after the date of the CDP Notice issued under

section 6330. This period is slightly different from the period for submitting a

written request for an equivalent hearing with respect to a CDP Notice issued under

section 6320. For a CDP Notice issued under section 6320, a taxpayer must submit

a written request for an equivalent hearing within the one-year period commencing

the day after the end of the five-business-day period following the filing of the

NFTL.

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Q-I8. How will the timeliness of a taxpayer's written request for an equivalent

hearing be determined?

A-I8. The rules and regulations under section 7502 and section 7503 will apply to

determine the timeliness of the taxpayer's request for an equivalent hearing, if

properly transmitted and addressed as provided in A-I10 of this paragraph (i)(2).

Q-I9. Is the one-year period within which a taxpayer must make a request for an

equivalent hearing extended because the taxpayer resides outside the United

States?

A-I9. No. All taxpayers who want an equivalent hearing must request the hearing

within the one-year period commencing the day after the date of the CDP Notice

issued under section 6330.

Q-I10. Where must the written request for an equivalent hearing be sent?

A-I10. The written request for an equivalent hearing must be sent, or hand

delivered (if permitted), to the IRS office and address as directed on the CDP

Notice. If the address of the issuing office does not appear on the CDP Notice, the

taxpayer should obtain the address of the office to which the written request should

be sent or hand delivered by calling, toll-free, 1-800-829-1040 and providing the

taxpayer's identification number (e.g., SSN, ITIN or EIN).

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Q-I11. What will happen if the taxpayer does not request an equivalent hearing in

writing within the one-year period commencing the day after the date of the CDP

Notice issued under section 6330?

A-I11. If the taxpayer does not request an equivalent hearing with Appeals within

the one-year period commencing the day after the date of the CDP Notice issued

under section 6330, the taxpayer foregoes the right to an equivalent hearing with

respect to the unpaid tax and tax periods shown on the CDP Notice. A written

request submitted within the one-year period that does not satisfy the requirements

set forth in A-I1(ii) of this paragraph (i)(2) is considered timely if the request is

perfected within a reasonable period of time pursuant to A-I1(iii) of this paragraph

(i)(2). If a request for equivalent hearing is untimely, either because the request

was not submitted within the one-year period or not perfected within the

reasonable period provided, the equivalent hearing request will be denied. The

taxpayer, however, may seek reconsideration by the IRS office collecting the tax,

assistance from the National Taxpayer Advocate, or an administrative hearing

before Appeals under its Collection Appeals Program or any successor program.

(j) Effective date.

This section is applicable on or after November 16, 2006 with respect to requests

made for CDP hearings or equivalent hearings on or after November 16, 2006.

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IRM 1.11.2.1.1 (01-01-2017)

Background

1. The IRS Restructuring and Reform Act of 1998 resulted in a complete

restructuring and reformatting of the IRM to align with IRS business processes.

One of the primary goals of IRS modernization was to restore and maintain the

IRM as the single, official compilation of IRS policies, procedures and guidelines.

...

...

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IRM 1.11.2.2 (01-01-2017)

IRM Standards

1. The IRM is the primary, official compilation of instructions to staff that

relate to the administration and operation of the IRS. The IRM ensures that

employees have the approved policy and guidance they need to carry out their

responsibilities in administering the tax laws or other agency obligations.

2. The IRM enables the IRS to meet certain federal requirements to document,

publish and maintain records of policies, authorities, procedures and organizational

operations described in IRM 1.11.1.3, Authorities and Legal Obligations of IMDs.

See also Exhibit 1.11.2-1 for the types of IMDs and their description.

3. Instructions which are the primary source of guidance belong in the IRM.

Primary, for this purpose, means it is the main source of procedural guidance. This

includes information that is integral to the employee’s job responsibilities or affects

their evaluation. The IRM contains information that:

• Is necessary

• Presents facts

• States responsibilities

• Offers recommendations

• Provides accurate measurements

4. Instructions remain in effect until amended, superseded or obsoleted by the

publication of a subsequent IRM.

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5. In certain operational or emergency situations, program owners may issue

IG to quickly convey to employees a new procedure, a change to current IRM

procedures, a temporary procedure or a pilot program. IG is issued either through

memoranda or SERP IRM procedural updates (IPUs). See IRM 1.11.10, Interim

Guidance Process, for detailed guidance for issuing instructions outside of the

IRM.

6. All instructions to staff must be accurate, accessible and easy to follow to

ensure employees provide consistent and fair treatment to the public. Instructions

to staff that revise the IRM in any way, including deviations, interim guidance,

pilot project or temporary guidance, must:

a. Reference the affected IRM section.

b. Be approved at the director level or above (or their documented

designee).

c. Be communicated to all affected employees.

d. Be evaluated for disclosure to the public and posted to IRS.gov if

necessary.

7. To ensure IRM instructions remain consistent, the IRM owner is responsible

for ensuring the IRM is reviewed annually for organizational or operational

changes.

8. Avoid duplicating information contained in another IMD that applies to

another office or organization. Rather, refer to the specific document or IRM

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number and title where the primary material is located. These practices help

employees find the necessary instructions and eliminate the potential for providing

conflicting instructions. See Exhibit 1.11.2-2, Most Common Reasons to Review

the IRM.

Example:

When addressing an IRS policy in connection with a procedure, rather than

restating it verbatim, reference the policy statement or paraphrase the content to

provide context, and include the IRM reference.

9. The “IRM Decision Tool” helps program managers and IRM authors

determine the type of information that belongs in the IRM. Through a series of

questions, the tool helps you identify whether instructions to staff found in other

sources must be in the IRM. View the tool at http://spder.web.irs.gov/imd/

resources/decide/.

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IRM 5.1.9.3.2.1 (11-28-2008)

Timeliness of the CDP Hearing Request

1. Collection makes the initial determination about the timeliness of a request

for hearing from a CDP levy notice or CDP lien notice, but Appeals must make the

final timeliness determination. See (9) below.

2. For a CDP levy hearing request to be timely, the taxpayer must submit a

written request for a CDP levy hearing within the 30-day period commencing the

day after the date of the CDP levy notice. If the CDP levy notice is not available

for purposes of identifying the date of the CDP levy notice, a TC 971 ac 069 on the

tax module identifies the date the CDP levy notice was issued. If the request for the

hearing is made after this 30-day period, the taxpayerer may be entitled to an

equivalent hearing. See IRM 5.1.9.3.2.3, Equivalent Hearing and Timeliness of

Equivalent Hearing Requests.

3. The time frame for filing a timely CDP lien hearing request is different than

for a CDP levy request. For a CDP lien hearing request to be timely, a taxpayer

must submit a written request for a CDP hearing within the 30-day period that

commences the day after the end of the five-business-day period following the

filing of the NFTL. Any request filed during the five-business-day period (before

the beginning of the 30-day period) will be deemed to be filed on the first day of

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the 30-day period. The Letter 3172, provides the date for the taxpayer to file a

timely CDP lien hearing request. If a request is filed within that time period it is

considered timely. If the request for the hearing is late, the taxpayer may be entitled

to request an equivalent hearing. See IRM 5.1.9.3.2.3, Equivalent Hearing and

Timeliness of Equivalent Hearing Request.

Note:

The date on the Letter 3172 considers the NFTL filed three business days after the

NFTL is mailed to the recording office.

4. A timely filed request for a hearing suspends the statutory period of

limitations on collection, criminal prosecutions, and other suits for the period that

is being appealed. The suspension begins on the receipt date of the CDP hearing

request.

5. The request for a CDP hearing should be stamped with the received date.

6. Use the date received in the office listed on the CDP hearing notice to

determine the timeliness of the CDP hearing request. If the received date is after

the time frame for filing a timely CDP hearing request but the request was

postmarked timely, use the postmark date as the receipt date. Timely mailing

constitutes timely filing if the taxpayers request for a CDP hearing is correctly

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addressed to the IRS office listed in the CDP hearing notice. If the address of that

office does not appear on the CDP notice, the taxpayer should obtain the address to

which the written request should be sent or hand delivered by calling toll-free,

1-800-829-1040, and providing the taxpayers identification number (SSN, EIN, or

ITIN). When the postmark is illegible or the envelope is missing, ascertain a

reasonable period for mail delivery from the origin of the request to the receiving

office and deduct that amount of time from the received date. If the 30th day is a

Saturday, Sunday, or federal holiday, and the postmark is for the next business day,

it is timely. Keep the envelope in which the hearing request was mailed and

associate it with the hearing request.

7. A taxpayers request for a CDP hearing can be submitted via facsimile (FAX)

to the office listed on the notice. The transmission date will be the received date.

The transmittal sheet should be retained along with the CDP hearing request.

8. A request for CDP hearing is untimely if:

A The request was not received within the required time period.

B The timely but nonprocessable request is made processable by the

taxpayer after the reasonable time period given for perfection. For a description of

the perfection process and processability criteria, see IRM 5.1.9.3.2.2, Perfection

of Timely CDP Hearing Requests.

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9. When a hearing request is untimely, the request must be sent to Appeals for a

separate timeliness determination.

Note:

A separate timeliness determination is not needed if the request is a timely CDP or

equivalent hearing request.

A. Document in the ICS case history, the reason Collection determined the

request to be untimely received. For example: The hearing request was received

within the 30-day period in section 6330 but was unprocessable. The taxpayer

failed to sign the request and was given 15 days to provide a signed copy of the

request. The taxpayer provided the signature 25 days after the perfection request

and as a result the request was untimely. The taxpayer stated he did not want an

equivalent hearing.

B. Fax the hearing request, Form 12153, the envelope it was mailed in, a copy

of CDP notice (L 3172 or L 1058), and any written correspondence to and from the

taxpayer, including any documents submitted by the taxpayer, to Appeals for a

separate timeliness determination. Appeals has access to the ICS history. Use a

Form 3210, Document Transmittal, clearly noting Request for Separate Timeliness

Determination. Appeals will expedite timeliness determinations.

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C. Fax requests for Separate Timeliness Determinations to Appeals based on

the location of the taxpayer. For taxpayers residing in AL, CT, DC, DE, FL, GA,

IN, KY, LA, MA, MD, ME, MI, MO, MS, NH, NC, NJ, NY, OH, PA, PR, RI, SC,

TN, USVI, VA, VT, WV, and International, fax requests to APS, Hartford, CT via

fax (860) 290-4007. For taxpayers residing in AK, AR, AZ, CA, CO, HI, IA, ID,

IL, KS, MN, MT, NE, ND, NM, NV, OK, OR, SD, TX, UT, WA, WI, WY, fax

requests to APS, St. Paul, MN via fax (651) 726-7451.

10. Appeals will either:

• Agree with Collections timeliness determination.

• Disagree with Collections timeliness determination.

• Partially agree with Collections timeliness determination because

there are multiple modules. If Appeals partially disagrees, Appeals will identify

which periods should be returned to Appeals.

If Appeals agrees that the request was untimely, inform the taxpayer orally or in

writing that the request is untimely and that the taxpayer may elect to have the

CDP hearing request treated as an equivalent hearing request. See IRM 5.1.9.3.2.3,

Equivalent Hearing and Timeliness of Equivalent Hearing Requests. If Appeals

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disagrees with the timeliness determination, treat the request for CDP hearing as

timely and process the CDP request under normal procedures.

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IRM 5.1.10.5 (08-21-2006)

Taxpayer Rights

1. Awareness of taxpayer rights is vitally important to the revenue officer job.

Taxpayer rights, in addition to the ones listed below and in Publication 1, are

addressed throughout IRM Part 5 and in IRM 5.1.9, Collection Appeal Rights.

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IRM 5.11.1.2.2.2 (03-21-2008)

Issuing Notice of Intent to Levy/Notice of a Right to a Hearing in CFf

1. When, on initial contact, a deadline is set for a BMF or BMF/IMF

combination taxpayer to take specific action, the L1058 will be issued with all

required enclosures. Explain to the taxpayer:

A If they meet the deadline, the enforcement action warned of will not

take place

B If they do not meet the deadline, the enforcement action warned of

may take place after 30 days, and

C That only by making a request for a CDP hearing, using Form 12153,

Request for a Collection Due Process Hearing, within the next 30 days, will the

right to go to court be preserved.

Note:

If the taxpayer does request a hearing, continue to work with the taxpayer pursuant

to IRM 5.1.9.3.3, Processing CDP and Equivalent Hearing Requests.

2. When the L1058 is delivered in person, update IDRS through ICS by

inputting Transaction Code (TC) 971, Action Code (AC) 069 and TC 971, AC 066

on the same date.

Page ! of !53 60


3. If no contact is made on the attempted initial contact, the L1058 and all

required enclosures may be left in an envelope at the taxpayers home or business

or mailed certified the next business day. Note Caution below (4).

4. When the L1058 is left at the taxpayers home or business, update IDRS by

inputting TC 971, AC 069, and TC 971, AC 067 on the same date.

Caution:

The date on the L1058 must be the date it is given to, left for, or mailed (return

receipt requested) to the taxpayer.

...

...

6. When extenuating circumstances exist such as assigned inventory covering

a large geographical area, and initial contact with the taxpayer is not in the field,

L1058 should still be issued if a deadline is set for the taxpayer to take specific

action.

7. Issuing L1058 in any case is not appropriate or may not be appropriate

when:

A Levy action is prohibited, such as when the taxpayer requests an

installment agreement on initial contact or the pending installment agreement

transaction code has already posted

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B A levy would not be issued if the taxpayer did not comply with the

deadline, e.g., the taxpayer is in a hardship situation or there is doubt as to the

correctness of the liability

C Information obtained during the attempted contact indicates the

taxpayer may no longer be at the last known address

D IMF accounts have been in a suspended status, e.g., assigned to the

Queue or reported currently not collectible for more than 12 months

E The taxpayer satisfactorily demonstrates that the deadline set will be

complied with, e.g., the taxpayer provides documentation that a loan is in process

to full pay the liability

8. Because taxpayers only have the right to one Collection Due Process hearing

for each taxable period, do not list liabilities on L1058 that have already been

included in such a notice. Issuing more than one notice for a taxable period may

give taxpayers the impression they can have another CDP hearing for that liability.

Reminder:

None of the campus IDRS notices are notices of a right to a hearing.

Reminder:

If the L1058 is mailed, it must be sent by certified or registered mail WITH A

RETURN RECEIPT.

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9. When the L1058 is mailed, update IDRS through ICS with TC 971, AC 069.

When the results of the delivery are known, upload AC 066, 067, or 068, as shown

in IRM 5.11.1.2.2.1 (3). For modules that are not in status 26 or when the TC 971,

AC 069, should be input for a date that is more than 30 days before the current

date, prepare Form 4844, Request for Terminal Action, for manual terminal input

to IDRS. Ask the terminal operator to input the date the action took place, rather

than the date of the input. If the delivery results cannot be determined, no

additional input is required.

Example:

The L1058 is mailed on March 10. The TC 971, AC 069, is input on March 12. The

date of the TC is March 10.

Note:

Inputting AC 067 on the same date as the AC 069 shows the notice was left at the

taxpayers home or business. Refused delivery is distinguished from this by the AC

067 being a later date than the AC 069.

Note:

If the return receipt comes back unsigned, but the envelope is not attached, use AC

066. If there is a postmark date on the receipt, use that as the date of the

transaction. If there is no postmark date, use the date that the return receipt is

received.

Note:

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In the past, if an IDRS 504 notice (status 58) had never been issued for a module,

TC 971 Action Code 35 was input to increase the failure to pay rate to 1% after

L1058 was issued. Action Code 069 now causes this change. If the higher rate has

not already gone into effect because of a 504 notice, Action Code 35 is not

necessary.

10. If the L1058 was not issued on initial contact, do not issue it when,

after consultation with the Fraud Technical Advisor (FTA), it is determined

that a firm indication of fraud has been established. (See

IRM 25.1.3.2 ,Preparation of Form 2797).

...

...

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IRM 8.22.5.3.1 (03-29-2012)

1. A taxpayer’s request for a CDP hearing must be in writing and requested

within the prescribed time period. In general, the written request must be sent or

hand-delivered to the IRS office and address as directed on the CDP notice. The

following table reflects the requirements for various manners of delivery:

2. Timely mailing is treated as timely filing/submitting as per IRC 7502 and

IRC 7503.

Delivery Method How Hearing Request Must be Made

Mail Timely mailed to the address of the IRS office listed in the CDP notice

Fax Timely transmitted to the fax number listed in the CDP notice

Hand-Delivery Timely received at the address of the IRS office listed in the CDP notice. See also IRM 8.22.5.3.1.3 for guidance on hand delivery to an IRS Taxpayer Assistance Center.

IF... AND... THEN...

The due date for filing a timely hearing request is a Saturday, Sunday, or legal holiday

The postmark, meter date, or fax transmission date is for the next business day after the Saturday, Sunday, or legal holiday

It is timely

The received date is after the due date for filing a timely hearing request

Postmarked or metered timely, or if the fax transmission date is timely

It is timely

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Example: The 30th day for a timely request falls on Sunday, August 7, 2013. The

taxpayer faxes the request to the fax number listed in the CDP notice on Monday,

August 8, 2013. The request is timely.

Example: The taxpayer mails his CDP hearing request to the Atlanta campus,

where he filed his tax return, not to the Philadelphia campus as directed in the CDP

notice. Atlanta received the request on Wednesday, September 7, 2013. On

September 8, 2013 an Atlanta campus employee faxed the request to Philadelphia,

the correct CDP unit. The due date for requesting a CDP hearing was September 7,

2013. The request was not timely received.

3. A postmark made by a non-U.S. Postal Service (USPS) system, such as a

private postage meter stamp or a designated Private Delivery Service (PDS),

requires both of the following to be considered timely:

a. Legible postmark must be dated on or before the due date, and

b. The appeal must be received by the required IRS office not later than

the time that a letter sent by the same class of mail would ordinarily

have been received if it were sent from the same point of origin via

the USPS on the last day for timely mailing the appeal.

...

...

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6. There are times when the envelope is missing or the postmark, meter or fax

transmission date is not legible.

...

...

IF ... THEN ...

Postmark or mail meter is not legible Ask the taxpayer when the request was mailed. If the taxpayer appears credible, use that date. If you can’t reach the taxpayer or the taxpayer is not credible, subtract three days for regular mail and seven days for overseas mail from the IRS received date.

Fax transmission date is not legible Use the date the Service received the request unless the taxpayer otherwise provides proof of timely fax transmission

There is no IRS received date Use the signature date

There is no IRS received date or signature date

Consider timely if received within 45 days of date required to be timely

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charles j. weiss, petitioner-appellant v. commissioner...

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