Exonerees and TAPS

On giving Tuesday we write to offer you two ways to give back to the community in the tax area. The first opportunity is by taking a pro bono case to assist individuals who were wrongfully incarcerated. After release from wrongful incarceration, many of these individuals lived in states that paid the exoneree for the damage caused by the wrongful incarceration. At the time of payment, the money received was taxable income. Congress changed the law and retroactively excluded these funds from taxation in 139F. It has also opened up the refund statute to allow these individuals to get back the money paid before the law change; however, the open refund statute is about to close. We wrote about this two years ago seeking volunteers and readers of PT generously donated their time to assist the individuals who had been identified. More individuals have now been identified and another push is needed to assist them. Please read Kelley Miller’s letter below and respond to her if you are able to assist. 

In addition to the opportunity to assist by working on a case, we also write to ask that you assist by donating money to TAPS. This fund, created by the ABA Tax Section, provides money for fellowships to new lawyers to work in low income taxpayer clinics and other similar settings to assist low income taxpayers. In particular, it seeks to create projects that would serve as models to assist these individuals. At PT we have a regular portal through which you can give to TAPS (look on the side of the blog.) Today, we bring you a letter from one of our loyal readers who caused his firm to give to TAPS. We ask that you consider using the portal to have your firm do the same or to give individually. Keith

Helping Exonerees

Hello, Friends:

Two years ago at this time, we were working round the clock with Jon Eldan of After Innocence in San Francisco to file refund claims under Section 139F by December 18, 2016.  I am really proud of the results achieved to date for our extraordinary, pro bono exoneree clients, and am so grateful for all of the assistance that Keith and his students at Harvard have provided to this effort as well over the past two years.  This work has resulted in our doing additional tax-related, pro bono work for exonerees beyond the Section 139F claims.  We have worked closely with Jon Eldan and the Innocence Project Network over the past two years as the only group of tax practitioners working to assist Exonerees.  It has been incredibly important and significant work for us.

As you all know, the extender bill (which we provided much education on in terms of the normative refund statute) that was passed back in February gave us an additional two years from the original claim filing date.  Since that time, Jon and myself and a team of summer associates and volunteer attorneys from Reed Smith have worked to locate almost 300 remaining possible Section 139F refund claimants, including, many military exonerees (these individuals are those left from our search two years ago, where we worked to locate hundreds of other possible Section 139F refund claimants).  As a result of working to locate these individuals, preliminary review of each’s facts and circumstances, Jon informed me today of 12 potential pro bono refund cases to review and assist with by the deadline of December 17, 2018.

I am writing to ask for your help in either you or your firm assisting us in taking on one or more of these cases.

Many thanks to you all. Happy to answer any questions and I welcome your thoughts about this work.

Best,

Kelley C. Miller
Direct 215.851.8855 – Mobile 215.704.3046 – Fax 215.851.1420
kmiller@reedsmith.com

 

Helping Low Income Taxpayers Through TAPS

I have been a tax controversy lawyer since 1977.  I spent about 10 years with the Office of Chief Counsel, IRS, and have been in private practice since 1986.  Procedurally Taxing has become a staple of my daily reading.  If Procedurally Taxing charged a fee for access, we would pay thousands of dollars per year for access just as we pay for other tax publications.  I inquired about how to make a contribution towards Procedurally Taxing, and was advised to make a donation to the ABA Tax Assistance Public Service Fund (“TAPS”), which provides long-term funding for tax-related public service programs for underserved taxpayers.  I was able to convince my firm to make annual donations to TAPS.  An added perk is the TAPS donor sticker attached to your name tag at ABA Tax Section meetings.

As a result of reading Procedurally Taxing every day, I have come to appreciate that low income taxpayer clinics frequently litigate important tax controversy issues that otherwise would not be litigated because the dollar amounts at issue are very small or the chances of success at the appellate level are low or, frequently, both.  This is another important reason every tax lawyer should support TAPS.

If you too read Procedurally Taxing every day, I encourage you to step-up and convince your firm to make annual donations to TAPS.  If you are a tax controversy attorney and you do not read Procedurally Taxing every day, you should, unless you are a government attorney, in which case it is fine if you want to remain in the dark about cutting edge tax controversy issues.

Bob

Robert. R Rubin ●  Attorney ●  BOUTIN  JONES INC. ●  555 Capitol Mall, Suite 1500  ●  Sacramento, CA 95814

Annual Low-Income Taxpayer Representation Workshop

For the last several years, the ABA Section of Taxation Pro Bono & Tax Clinics committee has organized a Low-Income Taxpayer Representation Workshop in early December in Washington, D.C. Keith, Les, and I have all been involved with the committee and the workshop at various times over the years. The workshop is a nice opportunity for practitioners interested in low-income taxpayer representation issues to come together for an afternoon of learning and conversation.

This year’s workshop will be on Monday afternoon, December 3, at the D.C. offices of Morgan, Lewis & Bockius LLP. Workshop organizer Caleb Smith has lined up four hours of CLE/CPE with exciting speakers on important topics including section 199A, tax litigation, and collection due process. While the workshop is designed for practioners who represent low-income taxpayers through a Low-Income Tax Clinic or other pro bono program, all are welcome to attend.

Registration is a bargain at $30, reflecting the Tax Section’s commitment to supporting low-income taxpayer representation, and also Morgan Lewis’s generous hosting. (Shout out also to the workshop’s longtime past host McDermott Will & Emery.)

Preliminary Agenda

1:00 p.m. The 2017 Tax Act and Self‐Employed Workers
This panel will discuss new code section 199A as well as tax planning issues for self‐employed and “gig economy” workers in light of the changes made by the 2017 tax act. The panel will also discuss how these changes in the tax law will be reflected during the filing season on the draft 2018 Form 1040.
Moderator: Caleb Smith, Ronald M. Mankoff Tax Clinic, University of Minnesota Law School, Minneapolis, MN
Panelists: Joseph Tiberio, IRS SB/SE, Washington, DC; Caroline Bruckner, American University Kogod School of Business, Washington, DC; Lisa Sperow, Cal Poly Low Income Taxpayer Clinic, San Luis Obispo, CA.

2:00 p.m. Collectability as a Litigation Tool: Settling with DOJ vs. IRS
This panel will discuss taxpayer collectability as a factor in litigation with the Internal Revenue Service in pre‐assessment Tax Court cases, and with the Department of Justice in post-assessment District Court litigation. The panel will discuss differences in the IRS and DOJ approaches on how to treat a taxpayer’s collection potential as a factor in settling cases.
Moderator: Tameka Lester, Georgia State University College of Law, Atlanta, GA
Panelists: Valerie Vlasenko, Agostino & Associates, Hackensack, NJ; Erin Stearns, Director, University of Denver Low Income Taxpayer Clinic, Denver, CO; Carol Koehler Ide, Assistant Chief, Civil Trial Section, Tax Division, U.S. Department of Justice; additional panelists TBA

3:30 p.m. Break (no CLE/CPE)

3:45 p.m. New Trends and Tactics in CDP Litigation
This panel will discuss emerging trends in Collection Due Process litigation, recent precedential court decisions, and identify traps for the unwary.
Moderator: Omeed Firouzi, Christine A. Brunswick Public Service Fellow, Philadelphia Legal Assistance, Philadelphia, PA
Panelists: Keith Fogg, Director Harvard Federal Tax Clinic, Jamaica Plain, MA; Tom Thomas, University of Missouri, Kansas City; Steve Milgrom, Legal Aid Society of San Diego, San Diego, CA; additional panelists TBA

5:15 p.m. Networking Reception (no CLE/CPE)

Session on Tax Implications of Gig Economy At Tax Policy Center

On October 23 there was a conference at the Tax Policy Center on Taxing the Gig Economy. There were two panels, one on the size and scope of the gig economy and the other on tax administration issues.

Here is a link for those who would like to listen to the event. I recommend the entire conference, which runs about 2 hours and 40 minutes. The first part of the panel lays out the data around the size of the gig economy, including a slide deck presented by Michael Udell that lists out trends in self-employment income over the past thirty years. The part that I found most interesting was the discussion of tax administration issues that begins at about 1 hour and nine minutes into the session.

The tax administration panel consisted of Dave Williams, Chief Tax Officer at Intuit, Nina Olson, National Taxpayer Advocate, Caroline Bruckner, a professor at American University who has written extensively on tax issues in the gig economy, and Pooja Kondabolu, who is the Senior Tax Policy Manager at Airbnb. It was moderated by Howard Gleckman, a senior fellow at Brookings.

A few of the highlights of the discussion included Intuit’s Dave Williams perceptively commenting on the lack of knowledge around tax issues among many of the service providers (e.g., Lyft drivers, Airbnb hosts), and how in the current environment many of the service providers simply do not know what they do not know. Professor Bruckner’s prior work Shortchanged lays out in great detail some of the difficulties facing sellers and service providers. Professor Bruckner recently testified in the Senate on some the issues she discussed on the panel (written testimony here). At the panel, she spoke about the possibility of changes to information reporting and dates for estimated payments to help people comply.

The National Taxpayer Advocate spoke about how the IRS could make the system better by facilitating compliance through a better and targeted use of technology for those who enter the tax system after getting an EIN, with things like wizards, email reminders about estimated taxes and the possibility of salient online account portals that could actually be used to help people comply.

What stood out to me in the discussion is how challenging some of the compliance issues are for self-employed taxpayers generally, and how there are many differing ways to improve the outcome. None of the measures alone however can work.

4th International Conference on Taxpayer Rights “Taxpayer Rights in the Digital Age: Implications for Transparency, Certainty, and Privacy”

The National Taxpayer Advocate asked us to announce the upcoming 4th International Conference on Taxpayer Rights and to alert readers not only to the conference, which has become an annual event, but to the opportunity to participate as a speaker at the conference and present a paper. Les and I both had the opportunity to participate as speakers in the first conference. He also participated in the second conference and I attended the third. The conference is an excellent chance to hear about the efforts to protect and improve taxpayer rights around the world. If you have thoughts and ideas about how taxpayer rights should be protected and improved, consider writing a paper and speaking at the conference. If you just want to listen to some interesting discussions on the topic, mark the date and note that the conference has been filling up and turning away interested attendees who signed up late. The balance of this post is taken from the official announcement of the conference and its call for papers. Keith

Taxpayer rights serve as the foundation for effective tax administration. Whether expressed through a taxpayer bill or charter of rights, or a declaration of human rights, governments have long recognized that providing taxpayers with assurances of fair treatment and respect, and protections against government overreaching, further voluntary compliance. Current research is exploring the extent to which procedural justice encourages taxpayers’ willingness to comply with tax laws and obligations.

Since November 2015, the National Taxpayer Advocate of the US Internal Revenue Service has convened 3 international conferences to bring together scholars, taxpayer representatives, tax administration officials, and taxpayer ombuds/advocates, and provide a forum for a multi-disciplinary discussion of the operation of taxpayer rights in theory and practice. Videos and abstracts or papers from past conferences are available at taxpayerrightsconference.com. The 3rd International Conference on Taxpayer Rights, held in Amsterdam, The Netherlands, hosted by the International Bureau of Fiscal Documentation (IBFD) and sponsored by Tax Analysts, was fully subscribed by 160 attendees from 42 countries.

The National Taxpayer Advocate will convene the 4th International Conference on Taxpayer Rights on May 23 and 24, 2019, in Minneapolis, Minnesota. The conference is hosted by the University of Minnesota School of Law and sponsored by Tax Analysts, with technical assistance from IBFD. The 2019 conference will explore the role of taxpayer rights in the digital age, and the implications of the expanding digital environment for transparency, certainty, and privacy in tax administration.

We are currently seeking presentation and paper proposals on a range of topics. In developing proposals, the conference encourages proposals from multiple disciplines (e.g., from the fields of law, economics, psychology, anthropology,

sociology, computer science as well as from government officials and ombuds and taxpayer advocates) that address the following topics:

  • The existence and comparative analysis of taxpayer charters and taxpayer bills of rights around the world, and the foundation of taxpayer rights in human rights.
  • A comparative law analysis of the treatment of taxpayer rights, including under common law and civil law, with recommendations to establish some global common standards.
  • The impact of “big data” on the right to privacy in the context of tax administration, including a comparative global analysis of the judicial treatment of evidence obtained from leaked tax and financial documents.
  • The availability of administrative guidance (including the limits of legislative interpretation and interpretive guidance), its role in fostering compliance, and administrative or statutory vehicles for obtaining access to that guidance, as well as the methods to bring stakeholders into a constructive discussion with authorities and legislative bodies.
  • The ability of taxpayers to legitimately rely on published administrative guidance in its various forms, how such reliance is treated by tax authorities, the judiciary, and legislative bodies, and remedies for taxpayers when they relied on such guidance, to their detriment.
  • The role of “whistleblowers” in tax administration, including access to tax information, and protections for both the whistleblower and the subject taxpayer, with a comparative analysis of the approaches of different countries and other fields of law.
  • The impact of increasingly digital delivery of taxpayer assistance on vulnerable taxpayer groups, including the efficacy of different modes of communicating with taxpayers in order to promote compliance.
  • The ability of taxpayers to bring cases to court, especially in countries where taxpayers are either afraid of seeking assistance or relief, or are reluctant to bring a case against tax authorities because of cultural reasons.

PAPER SUBMISSION PROCEDURE:

To submit a paper proposal, please send the following information by December 1, 2018 to tprightsconference@irs.gov:

  • Author(s) name, contact information, and professional affiliation
  • Author(s) CV
  • Title of proposed paper
  • A 3 to 5 page abstract of the paper, in Times New Roman, 11 point, double spaced, left alignment.

Participants will be notified of their selection by January 1, 2019. Conference fees for presenters will be waived. Travel and accommodation assistance also may be available for academic presenters, courtesy of co-sponsors.

Post-conference opportunities for publication of original papers will be available, including in The Tax Lawyer and in Tax Analysts publications.

Important dates and deadlines:

Deadline for submission of abstracts: 01 December 2018

Notification of paper/presentation acceptance: 01 January 2019

Deadline for submission of slide presentations and updated abstracts: 15 April 2019

Deadline for submission of papers for publication in Tax Lawyer or by Tax Analysts 31 July 2019

Upcoming Appellate Arguments on Cases PT Has Blogged

Frequent guest blogger Carl Smith keeps us up to date with many items that he tracks. Carl is headed to Hawaii for a well-deserved vacation from his busy retirement but before he left he provided us with an update on a number of cases on which we have previously reported. Because we usually pick cases of some importance on which to write, it is not surprising that many of them continue on past the initial decision. For those interested in knowing what is happening on some of the cases on which we have blogged, Carl has left us with a guide to the cases moving forward to oral argument on appeal in the next couple of months.

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  1. The first case is one on which Les blogged here and here over two years ago. The issue in the case concerns the effect of fraud on the return by a third party and whether that fraud can hold open the statute of limitations even if the taxpayer did not commit fraud in filing the return. On Nov. 8, the 11th Cir. will hear the appeal of Finnegan v. Commissioner, T.C. Memo. 2016-188, in which the Tax Court held that the fraudulent conduct of a return preparer extended the SOL of 6501 indefinitely (per its Allen opinion).  The Tax Court refused to follow the Fed. Cir.’s BASR’s holding to the contrary, but which is possibly distinguishable as a TEFRA partnership case.  Frank Agostino will do oral argument for the taxpayers.  The DOJ argues that the Tax Court’s interpretation of 6501 is correct and that the taxpayers waived raising any argument that the Tax Court’s position in Allen is wrong. The briefs are here: Appellant; Appellee; Reply. We note in our earlier posts that fellow bloggers Jack Townsend and Bryan Camp think Allen is wrong. I happen to think it is right. Aside from obviously turning on the language of the statute, the issue is one of where should the focus lie. Should the IRS receive an unlimited time period within which to make an assessment because of the deceit on the return or should the taxpayer have a normal statute of limitations since the taxpayer did not engage in fraud even if the taxpayer benefited from the action. It would not be surprising to find that this issue eventually ended up in the Supreme Court.
  2. On Nov. 9, the 9th Cir. will hear oral argument in Crim v. Commissioner, one of the cases in which Joe DiRuzzo is arguing the Kuretski issue.  Carl blogged about the case here mentioning the forthcoming oral argument and providing links to the briefs. The Kuretski issue for those of you not following it closely involves the power of the President to remove Tax Court judges which raises issues of separation of powers depending on where the Tax Court lands inside the government. Is it a part of the executive branch as the D.C. Circuit determined in Kuretski making the removal provision constitutional sound or is it a part of one of the other two branches of government as signaled by the Supreme Court in an earlier case not involving the removal provision. Should the 9th Circuit decide to place the Tax Court in the Judicial or Legislative branch, this case to could end up in the Supreme Court.
  1. Any regular reader of PT knows that the most blogged about issue in 2018 involves the Graev decision and its many permutations. On April 4, 2018, Carl blogged about the RERI case which involves the application of IRC 6751(b) to penalties imposed on partnerships. On Nov. 9, the D.C. Cir. will have oral argument in this TEFRA partnership case, among whose arguments are that the IRS did not prove compliance with 6751(b).  This may result in getting a Court of appeals to accept the Tax Court’s holding in Dynamo Holdings that 7491(c) does not put the burden on the IRS to prove compliance with 6751(b) because TEFRA partnerships are not “individuals”.
  1. On Nov. 13, the 2d Cir. hears oral argument in Borenstein v. Commissioner. I blogged about this case here. The Federal Tax Clinic at the Legal Services Center of Harvard Law School together with the tax clinic at Georgia State filed an amicus brief in the Tax Court and again in the Second Circuit.  This case has to do with the Tax Court’s overpayment jurisdiction under 6512(b) in an odd fact pattern in which the taxpayer filed a late return seeking a refund. The timing of the refund falls into a legislative donut hole because she requested an extension of time to file her return.  The case will not have broad applicability though it is possible that others could fall into this potential trap. The issue requires parsing the language of the statute and discerning its meaning in the overall context of filing a late tax return which contains a refund claim.
  1. On Dec. 4, the D.C. Cir. will hear oral argument from Joe DiRuzzo (again) in the whistleblower case of Myers v. Commissioner. Carl blogged this case on May 21, 2018 in which he linked to the appellants brief and to the brief filed by the Federal Tax Clinic at the Legal Services Center of Harvard, but not the later-filed appellee and reply briefs).  The issue in this case concerns whether the IRS sent a valid determination letter to the whistleblower. In whistleblower cases the statute does not make clear exactly what must be sent to provide a ticket to the Tax Court. The IRS sent him by regular mail a series of letters, none of which said that he should file in the Tax Court if he disagreed.  After many months contacting various other people in government for help with his claim, Mr. Myers eventually took a flyer on filing a Tax Court petition.  The Court decided that each letter in the series had been a ticket to the Tax Court, and Mr. Myers had filed late — dismissing his case for lack of jurisdiction. Because Congress has created new jurisdictional bases for the Tax Court in whistleblower and in passport revocation without setting out the type and formality of correspondence that the IRS must send to provide the ticket to court, these types of cases are needed in order to sort out when to come to court. Because Mr. Meyers is pro se, he may be one of many unrepresented individuals who will struggle to pick the right correspondence if the correspondence does not clearly alert him to its importance as a ticket to court.

 

 

 

Altera Oral Argument Live Stream Available Now

We have covered the Altera opinion extensively. The oral argument in the Ninth Circuit is being live streamed here

The argument started today at 5PM EDT. On my stream it can be found at about 7 minutes and 52 seconds in.

UPDATE: The above video link is no longer active; a link to a recording of the video is here and the audio alone is here

Notes from Last Week’s ABA Tax Section Meeting in Atlanta

Christine, Les and I attended the ABA Tax Section meeting in Atlanta from October 4-6. We did a little speaking and a lot of listening. One of the benefits of the meeting is to hear the government speakers to obtain insights on their world. Here is a short post coming from a meeting in which government speakers provided updates.

Comments from Chief Judge of the Tax Court

The Tax Court is developing a new case management system and has signed a contract with the vendor to build the system. No date on when it might be launched.

The Tax Court currently has 175 cases with over $10 million in dispute

The ABA Tax Section submitted a proposal to the Tax Court to allow limited scope representation. The Chief Judge has submitted the proposal to the Court’s Rules Committee, Pro Bono Committee and Admissions Committee for review and a report back. [These comments resulted from remarks by Chief Special Trial Judge Lewis Carluzzo at the Tax Court’s judicial conference back in March of this year. Note that PT’s own Christine Speidel was one of the primary persons responsible for the comment. The ABA comment recommends that the Tax Court adopt limited practice rules especially to cover lawyers assisting with calendar call. This is a positive development that has been discussed for many years.]

There were over 27,000 cases filed in the Tax Court last year and over 29,000 cases closed.

Comments from the Office of Chief Counsel

The comments focused on the implementation of IRC 7345 and the passport revocation program. As of August 31, 2018, 272,656 taxpayers have been certified by the IRS to the State Department. Of those taxpayers, slightly over 17,000 have been decertified or reversed.

A taxpayer cannot just pay the debt under $51,000 and have the passport revocation lifted. Once a taxpayer is selected and referred, full payment must be made to have the IRS decertify the debt.

The Tax Court has chosen to use the letter “P” after the docket number to indicate that a case is a passport case.

The Tax Court is not the exclusive forum for contesting the passport revocation. Chief Counsel takes the position that: 1) a taxpayer cannot raise the merits of the underlying liability in the passport revocation case; 2) an equivalent hearing does not stop a passport revocation from moving forward the same way a CDP hearing would; 3) the scope of review is the administrative record; 4) the standard of review is abuse of discretion; 5) Chief Counsel will not refer these cases to Appeals after the filing of a Tax Court petition; and 6) the appellate venue in these cases is the DC Circuit. The Chief Counsel initial positions on passport revocation can be found in CC-2018-5.

It is not clear how to figure out what the State Department is doing with the information that the IRS sends over. The taxpayer generally will not hear from the State Department unless it revokes the passport or rejects an application for a passport. If a taxpayer applies and the State Department rejects the application because of an IRS certification, the State Department will hold open the application for 90 days for the individual to get the IRS to withdraw the referral. Thereafter, the individual will need to reapply for the passport.

The IRS has no control over what the State Department does with the referrals. It is not clear that an individual has a path to talk to someone in the State Department. It has not yet published procedures for handling these cases. The State Department is held harmless by the statute for the actions it takes (or fails to take) in these cases. The State Department may issue a passport for humanitarian or emergency reasons but does not have a requirement to do so.

Comments from DOJ, Tax Division

It is focusing on three matters this year:

  • Offshore
  • Return Preparer Injunctions – it has brought 40 complaints so far this year
  • Employment taxes – it has obtain 100 permanent injunctions against individuals and businesses pyramiding liability since 2016

Comments from Treasury

It is working hard to publish regulations as quickly as possible. It is not giving commenters additional time to submit comments generally because of the push to get out the regulations. The goal is to publish all of the regulations within 18 months of enactment so that the government gets the benefit of the relation back to the date of enactment rule.

Unsuccessful Constitutional Challenges to the Collection Treaty Provision in the Tax Treaty between Canada and the United States

This summer I visited Canada twice, Montreal and Toronto. Canada and the United States have long seemed like best friends. I wondered if I would be treated any differently now that our government policies do not seem to treat Canada as our best friend. Happy to report the Canadians remain as friendly as ever on the personal level. They do, however, want to collect the taxes due to them and that results in the case of Retfalvi v. United States, No. 5:17-cv-00468 (E.D.N.C. Aug., 15, 2018).

I have written before about the collection language that exists in two of the five tax treaties that have this special language, France and Denmark. Canada, along with the Netherlands and Sweden, is one of the other three countries that have the collection provision in their tax treaty with the United States. The Canadians invoked the treaty to ask the Unites States, specifically the IRS, to collect some unpaid Canadian taxes from an individual who at one point was a Canadian citizen but who had become a citizen of the United States. The taxpayer raised a number of constitutional arguments regarding the treaty to collect taxes. Most individuals raising constitutional arguments bring the phrase ‘tax protestor’ to mind but these were legitimate and well-argued constitutional arguments. In the end, the taxpayer lost but we gain insight regarding the constitutional underpinnings of the collection treaty provisions.

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Mr. Retfalvi moved from Hungary to Canada and became a citizen in 1993. He later moved to the United States and obtained permanent resident status in 2005 followed by citizenship in 2010. In 2006 he sold a pair of condominiums he had purchased earlier in Vancouver before he knew he was moving to the United States. He and his wife reported the sales on their Canadian tax returns; however, the returns were selected for audit. The audit resulted in a proposed increase in tax of over $100,000. He did not petition the Canadian Tax Court to fight the assessment of this additional tax. After the assessment became final, Canada invoked the treaty to secure the assistance of the IRS in collecting the taxes.

As the treaty requires, the IRS sprang into action. In November of 2015 it sent to Mr. Retfalvi a “Final Notice – Notice of Intent to Levy” giving him a chance to pay the liability before the IRS took administrative collection action against him. He objected to the notice of intent to levy and let the IRS know that he did not owe the tax. The IRS let him know that he had no ability to contest the tax in the United States. He filed a Form 12153 seeking a Collection Due Process (CDP) or equivalent hearing. The IRS let him know that he could not use the CDP process but could seek a CAP appeal. The IRS subsequently denied his CAP appeal because he tried to use the CAP process to challenge the underlying liability.

After failing to obtain a CDP hearing and losing the CAP appeal, Mr. Retfalvi filed suit in the United States District Court for the Eastern District of North Carolina seeking declaratory and injunctive relief from the collection action. The IRS moved to dismiss for lack of subject matter jurisdiction and failure to state a claim. The court dismissed the case citing the anti-injunction statute. Mr. Retfalvi then paid the tax and filed a suit for refund. The IRS rejected his claim for refund and he filed this suit because of alleged constitutional infirmities with the collection treaty provisions. He cited to nine specific constitutional problems with the treaty:

  • Article 26A [the collection provision of the treaty] violates the Origination Clause because it is a bill to raise revenue that did not originate in the House of Representatives:
  • Article 26A is invalid because it is not self-executing;
  • Article 26A violates the Taxing Clause because Congress has the exclusive authority to lay and collect taxes;
  • Article 26A violates the Taxing Clause because Congress cannot use its taxing power to levy or collect taxes of a foreign country;
  • Article 26A violates the Taxing Clause because it purports to amend the Internal Revenue Code;
  • The IRS is not authorized to assess and collect taxes imposed by Canadian laws;
  • Article 26A denies taxpayers due process;
  • Article 26A denies taxpayer equal protection of the law that is available to taxpayers who have had taxes assessed under the Internal Revenue Code; and
  • Article 26A creates an impermissible sub-classification of United States taxpayers.

The court addressed each of the nine alleged grounds for striking the treaty provision. It found as to each that a basis existed for the provision to be deemed constitutional. As a result, it struck his refund suit. I do not know if he has the ability to bring a refund suit in Canada but that is where he must go next if he wants the return of his money.

I am not going to go through each of the separate reasons that the court found the treaty provision constitutional but anyone with an interest in treaties and in constitutional law may find the opinion interesting. It provides a fair amount of detail with respect to each of the claimed bases for unconstitutionality including case citations and, in some instances, analysis of the treaty language as it relates to the constitution. The case also provides a good discussion of what is a tax bill that must originate in the House of Representatives and what is not.

This case continues the general theme of the collection treaty cases both here and in the other treaty countries. That theme, succinctly stated, is that if you want relief you must seek it in the country in which the liability arose. The country to whom the liability is sent pursuant to the treaty provision simply goes out and collects the money with basically no questions asked about the correctness of its origins.