Some Developments on CDP Statutes of Limitation: US v Hendrick and Weiss v Commissioner

In this post I will discuss  two cases involving statutes of limitation and CDP, US v Hendrick and Weiss v Commissioner.

US v Hendrick is a recent federal district court opinion out of the Western District of PA that concluded that the statute of limitations on collection was tolled for the 30-day period following a CDP determination even when the taxpayer chose not to challenge the determination in Tax Court. Weiss v Commissioner is a case on appeal in the DC Circuit that addresses when a 30-day period runs requesting a CDP hearing when the date the CDP notice was mailed differs from the date on the notice itself.

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First Hendrick. Simplifying somewhat, the case involved trust fund assessments, the taxpayer’s timely filing of a CDP request, and the IRS’s issuing of a Notice of Determination sustaining the proposed levy action which informed the taxpayer of the right to appeal the determination in Tax Court within 30 days (I note, and perhaps will return in a later post, to the possible significance of the 2015 legislative change substituting the word “petition” for “appeal” in Section 6330, a subtle point made in Judge Holmes’ Kasper opinion concerning the relationship of the APA and administrative law generally to the mix of non deficiency cases in Tax Court).

The taxpayer did not file an appeal in the 30-day window. Moving with not much speed, the government waited about ten years to file a suit to reduce the assessment to judgment. (It is possible that the government had made administrative efforts to collect; the opinion is silent on that).

As most readers know, under Section 6502 the government may bring a suit within ten years. The government’s collection suit was outside the ten-year period if you did not include in the tolling period the 30-day period that the taxpayer could have filed a petition for review to the Tax Court. Not surprisingly, the taxpayer argued that the 30-day appeal window should not count when in fact the taxpayer does not exercise his appeal rights and challenge a CDP determination in Tax Court.

Section 6330 essentially states that the ten-year period is suspended while a CDP hearing and any appeal is pending. The case turned on whether the hearing or an appeal was pending in that 30-day window when the taxpayer could have filed a petition to Tax Court. The statute does not define the term pending, though regulations provide that the period when the taxpayer could have appealed the determination is part of the time that the statute is suspended:

[t]he period of limitation under section 6502 (relating to collection after assessment) … [is] 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. 26 C.F.R. § 301.6330-1(g)(1).

This precise issue was addressed in a 2014 Ninth Circuit case, US v Kollman, that Keith blogged about here. The district court opinion, as did the Ninth Circuit, concluded that the statute itself was not clear and the regulation under a Chevron Step Two analysis was a reasonable interpretation of an ambiguous statute.

In finding for the government, the opinion notes that in analogous areas IRS and courts have taken a consistent approach and concluded that limitations periods are tolled pending periods when appeals could be taken. From a policy perspective, the decision is correct, as apart from offset,  the IRS cannot take administrative collection action during that 30-day period.

Weiss: A Case for the Dogs?

Another case involving a CDP statute of limitations issue is percolating its way through the DC Circuit Court of Appeals, Weiss v Commissioner, a case that Keith blogged here. The case involves some colorful facts: the revenue offer attempted to hand deliver the notice of intent to levy but a dog prevented him from making it up the driveway. After failing to successfully hand deliver the notice, when he returned the office two days later, the Revenue Officer mailed it using certified mail but did not change the date on the notice.The taxpayer claimed that the earlier date on the notice governed the 30-day period to make the CDP request.

The taxpayer in Weiss was trying to wait out the SOL on collection, as an equivalent hearing filed outside the 30-day window does not toll the SOL, and if the request was considered an equivalent hearing the IRS was out of time to collect. The Tax Court did not buy the argument, and held that the actual date of mailing controlled the 30-day period, and since Weiss filed within that 30-day period, the request was for a full blown CDP hearing and not an equivalent hearing.

On brief, Weiss also argues in the alternative that the government should be estopped from arguing that the mailing date controls, since it showed the earlier date in the notice of intent to levy. This argument presupposes that the deadline at issue is not jurisdictional, an issue that should be familiar to our readers, though the taxpayer did not press the jurisdictional predicate on brief.

For those wanting a deeper dive, an audio recording of the Weiss oral argument can be found here. Weiss’ brief can be found here; government brief here; and taxpayer’s reply here.

Extended Statute of Limitations for Unreported Income Does not Apply to Gross Income for Failure to Report Foreign Financial Assets before Enactment of IRC 6038D

In a precedential opinion, the Tax Court in RAFIZADEH v. Commissioner, 150 T.C. No. 1 (2018) held that the petitioner’s failure to report income from foreign financial assets did not hold open the statute of limitations on assessment. Because the IRS took more than three years after the timely filing of his returns for the years at issue before it issued the notice of deficiency, the statute expired prior to the notice. The taxpayer won a complete victory. The case is narrow in its holding and the tax years to which it applies have now run, but the victory is certainly important for this taxpayer and perhaps for others whose foreign income was discovered through the use of summons after the ordinary statute of limitations had expired.

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Petitioner timely filed his 2006 through 2009 returns. It seems rare to state someone timely filed their returns in this blog even though timely filing is the norm for the vast majority of taxpayers. The timely filing of the returns proves important for petitioner here. On the timely filed returns petitioner did not report income earned on a foreign account that he owned. That unreported income forms the bases of the notice of deficiency that the IRS ultimately sent.

Over the past 15 or more years, the IRS has used John Doe summonses to obtain information about U.S. taxpayers with accounts overseas. It issued such a summons at some point and obtained information on November 16, 2010. The receipt of information from a John Doe summons is a starting point and not an ending point. Once the information is received, it can take the IRS quite some time to process that information and match it with specific taxpayers. In this case it took four years from the receipt of the John Doe information until the issuance of a notice of deficiency to petitioner on December 8, 2014, with respect to the tax years 2006-2009. In the notice the IRS asserted accuracy related penalties but did not assert the fraud penalty.

Had it asserted the fraud penalty, and had it succeeded in proving fraud in the failure to report the income from the foreign based assets, the statute of limitations would have remained open based on the fraud exception, which creates an unlimited time period within which the IRS can assess. Instead, the IRS argued that the statute was held open by the six year statute of limitations found in IRC 6501(e)(1)(A)(ii) which applies in situations in which the taxpayer omits “specified foreign financial assets” required to be reported by IRC 6038D.

The issuance of the John Doe summons suspended the running of the statute of limitations pursuant to 7609(e)(2)(A), but because of its resolution in 2010, that suspension was insufficient to keep the statute open until the issuance of the notice of deficiency. In order to keep the statute open until the notice of deficiency was issued, the IRS needed the special provision related to foreign assets which was not enacted until March 18, 2010. I assume from the lack of discussion that the amount of the omitted income was insufficient to trigger the six year statute of limitations based on a 25% omission of gross income. The liabilities in the notice, which range from $10,934 to $1,619, suggest that the amount of omitted income was not huge.

Section 6038D is effective for taxable years beginning after March 18, 2010 which was the date of its enactment. Section 6501(e)(1)(A)(ii) applies to returns filed after March 18, 2010, and also to “returns filed on or before …[March 18, 2010] if the period specified in section 6501 of the Internal Revenue Code of 1986 (determined without such regard to such amendments) for assessment of such taxes has not expired as of such date.”

Petitioner argues that the effective date of section 6038D precludes the application of the six year statute of limitations. Specifically, petitioner argues that the phrase in section 6501(e)(1)(A)(ii) which states “assets with respect to which information is required to be reported under section 6038D at the time the income was omitted” requires that the extension only apply to years after the effective date of 6038D. Since petitioner did not have a requirement under section 6038D to report these assets for the tax years 2006-2009, he could not have trigger the six year period under the complimentary statute.

The Tax Court agrees with the petitioner, stating “we must give effect to all of the words in the key phrase before us – ‘assets with respect to which information is required to be reported under section 6038D.’” The Court finds that even though the effective date of section 6038D was not imported by the cross-reference to section 6038D, the most natural reading of the phrase is that the six year statute only applies if a section 6038D reporting requirement exists.

The IRS also argued that the reporting requirement in section 6501(c)(8) shows that Congress did not link the statute extension in section 6501(e)(1)(A)(ii) to the failure to satisfy section 6038D, but the Tax Court does not buy this argument finding instead that the failure to report under section 6501(c)(8) has its own limitations period. The Court points out that it addressed a similar statute of limitations issue involving cross referencing in the case of Blak Invs. v. Commissioner, 133 T.C. 431 (2009). In that case, the issue was section 6707A and the limitation period in section 6501(c)(10). The Court finds the decision in Blak instructive. In section 6501(c)(10), Congress used the phrase “for any taxable year” but in section 6501(e)(1)(A)(ii) the language does not broaden to “any” taxable year. The statute in Blak also involved a preexisting obligation to report information whereas in this case petitioner had no preexisting duty to report the information now required by IRC 6038D.

The case is precedential because it decides a matter not previously addressed by the Court. The issue is unlikely to arise in the future now that we are seven years into the reporting requirements of section 6038D. The statutory analysis used to reach the conclusion in the case may be useful to others seeking to attack a statute of limitation extension. Congress has demonstrated a willingness in recent years to create an extended statute for new reporting requirements. To the extent you are faced with a similar situation, the RAFIZADEH case provides a possible path to victory.

 

 

Tolling the Statute of Limitations on Collection

I have written before about the ability of a Collection Due Process (CDP) request to toll the statute of limitations on collection and hold it open for the IRS to bring a suit to foreclose or to reduce the assessment to judgment. In the Holmes case, it was the request itself that held open the statute of limitations with some discussion of the failure of the IRS to timely act upon the request. The court there found that the request held open the statute of limitations even though the IRS did not act on the request within its ordinary time period.

In the case of United States v. Giaimo, No. 16-2479 (8th Cir. 4-17-2017), a similar issue arises, but here the concern is Tax Court petition she filed following the receipt of a CDP determination. The issue arises in a lien foreclosure case with the taxpayer arguing, similar to the taxpayer in Holmes, that the IRS did not bring the suit within the 10-year period of the collection statute of limitations. In order for the IRS to win, it had to show that Ms. Giaimo timely brought a CDP suit which tolled the statute of limitations on collection. She argued that she never intended to bring the suit and that the Tax Court petition was untimely filed. The 8th Circuit finds otherwise in an opinion that determines her CDP petition kept open the statute of limitations on collection.

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How do you not realize that you are bringing a suit? Maybe a better way to frame the question in this case would be how do you make it clear why you brought a suit? The facts make it clear that Ms. Giaimo filed a Tax Court petition after receiving a notice of determination. She argues that her suit did not extend the statute of limitations on collection. The 8th Circuit, affirming the lower court, holds that it did.

Ms. Giaimo received a CDP lien notice and a CDP levy notice in 2005 with respect to her income taxes for 1992-1994. The assessment of the liabilities for these years was delayed by a bankruptcy and did not occur until 1999. The levy notice arrived first, in February 2005, which is normal and the lien notice arrived in April of 2005. She sent the IRS Form 12153, seeking to assert her right to a CDP hearing. The form was timely only with respect to the lien notice. The IRS treated the CDP hearing with respect to the levy as an equivalent hearing. At the conclusion of her discussions with Appeals, it decided that she should not receive the relief she wanted. Appeals issued a notice of determination with respect to the CDP lien notice, but a decision letter with respect to the levy because it treated that hearing as an equivalent hearing. She timely petitioned the Tax Court based on the notice of determination and eventually the Tax Court granted summary judgment to the IRS in 2007. The effect of requesting the CDP hearing with respect to the lien notice is to suspend the statute of limitations on collection from the time of the request until the conclusion of the Tax Court case – approximately two years.

Flash forward to 2011 and the IRS initiates a suit to enforce its lien and foreclose upon certain real property. Ms. Giaimo argues that the statute of limitations on collection expired in 2009, ten years after assessment, while the IRS argues that the statute of limitations on collection expires two years later because of the CDP hearing and Tax Court petition. To avoid the problem of having the statute suspended as a result of the Tax Court case, Ms. Giaimo argues that she brought the Tax Court case to contest the levy and not to contest the lien. The 8th Circuit suggests that her argument arises because of the interplay of IRC 6320 (the CDP lien statute) and 6330 (the CDP levy statute). If you look at the two statutes, you find that they do not mirror each other but rather 6320 borrows from 6330. Many of the CDP provisions reside in 6330, and 6320 basically says to go look at 6330 and follow the directions there. Picking up on the differences in the statutes, Ms. Giaimo argues that her Tax Court suit was based on the levy. Since it did not involve a challenge to the notice of federal tax lien, the statute of limitations on collection was not tolled by the Tax Court case.

The 8th Circuit does not buy what she was selling. It looks at the two statutes, it looks at her Tax Court petition, and it determines that the petition sought to challenge the only thing it could challenge – the CDP lien determination. Her Tax Court petition did reference the tax levy, but the 8th Circuit finds that “regardless of what other issues Giaimo impermissibly might have attempted to raise in her Tax Court appeal, she placed a challenge to the lien before the Tax Court….”

Additionally, she argued that her Tax Court petition was untimely. The IRS argued that the fact of the Tax Court jurisdiction is res judicata because of the decision in the case and cannot be collaterally attacked. The 8th Circuit does not accept this argument but looks at the case. It finds that the “presumption of regularity applies to a long-closed proceeding.” It says that Ms. Giaimo has a heavy burden to show that jurisdiction did not exist. Here, she signed the petition four days before the deadline, the Tax Court deemed the petition timely, she failed to challenge jurisdiction while the case was pending, she did not appeal the decision and she failed to collaterally attack the decision for many years. The court found that she did not carry her heavy burden.

She argued that the Tax Court entered her petition on its docket on the third day after the deadline for filing the petition. The 8th Circuit points to the mailbox rule to swat away this argument. She also argued that the IRS had the burden to come up with her envelope to show the timely mailing. The 8th Circuit finds that the IRS does not have such a burden in a case in which she raises the issue many years after the event.

There is nothing remarkable about the decision. Her arguments were somewhat unique. She argues on the opposite side of the argument most petitioners make, because she is trying to undo something that she set in motion. The case points again to a downside in bringing a CDP case without a plan. When a taxpayer makes a CDP request and files a CDP petition, their only plan at the time might be to delay the collection of the liability. If that is the plan, the request and the petition will work, but it comes with a price. She pays the same price as the petitioners in the Holmes case, which is that she keeps open the statute of limitations for the IRS to bring suit. In another recent post, Mr. Mayweather filed a CDP petition to delay collection but with a plan to use that time to collect his fight purse and pay off the liability. Filing the CDP request and petition can have many beneficial aspects but it has consequences, and thinking about those consequences before initiating the proceeding matters.

 

 

Tax Free Reorg and Statute of Limitations: When is a Document a Return?

The New Capital Fire v Commissioner case from earlier this month is another in the many cases involving statutes of limitation on assessment. The case involves an old issue;  whether a document constitutes a return for purposes of starting the clock ticking on the statute of limitations on assessment.

In this case, the twist was that one taxpayer (Old Capital Fire)  was merged out of existence in a transaction that was intended to qualify as a tax free reorg under 368(a)(1)(F) (an F reorg) Following the merger, the surviving corporation (New Capital Fire) filed a corporate tax return, and with that return it included a pro forma Form 1120 that it included with its corporate tax return. That pro forma 1120 included the information pertaining to Old Capital Fire’s operations in its last short year.

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Generally speaking, when there is an F reorg, as the opinion discusses, the regs under Section 381 require that “the part of the tax year before the reorganization and the part after constitute a single tax year, and the resulting corporation must file a single full-year return.”

The problem here was apparently IRS argued that there was no valid F reorg. IRS came in 9 years or so after New Capital Fire filed its return and sought to assess a tax relating to the return that it believed Old Capital was required to separately file. If no return was filed, under Section 6501(c)(3) IRS would have an unlimited time to assess additional tax.

The issue that the Tax Court considered was whether the pro forma 1120 that New Capital included with its return was a return for purposes of starting the SOL on assessment for the tax stemming from the supposedly blown reorg.

There is plenty of old law on whether a document filed with the Service counts as a return. In 1984 the Tax Court put together the story in the oft-cited Beard v Commissioner, where it identified the following test:

(1) the document must contain sufficient data to calculate tax liability;

(2) the document must purport to be a return;

(3) there must be an honest and reasonable attempt to satisfy the requirements of the tax law; and

(4) the taxpayer must have executed the document under penalties of perjury.

Most of the New Capital Fire opinion centered on the third requirement, the need to have an “honest and reasonable attempt” satisfy the tax law. The IRS argued that the New Capital return was purposefully misleading. While it was not clear (to me anyway) what led the IRS to label it as such, the opinion noted that the New Capital return had a clear statement regarding the position that Old Capital was merged into New Capital and that the pro forma return reported “income, deductions, and credits that were included in the notice of deficiency at issue in this case.”

The opinion notes that many opinions have liberally applied the third Beard element, with a flunking only if the court found that the pro forma 1120 and the 1120 that disclosed the merger was “false or fraudulent with intent to evade tax as it pertains to Old Capital.” The Tax Court observed that the IRS came up short, as “New Capital’s 2002 return contained sufficient information to calculate Old Capital’s tax liability.”

As the opinion notes, citing cases like Zellerbach Paper v Helvering and Germantown Trust v Commissioner, perfect accuracy is not necessary. Even if New Capital whiffed and there was a separate obligation to file a different return relating to Old Capital’s short year, that mistake did not change the fact that IRS had what it needed to assess any additional tax within the normal time frame.

With that, the court concluded that IRS did in fact receive a return from Old Capital and IRS was out of luck (and time) to assess any additional tax that may have stemmed from Old Capital Fire’s merger.

Recent Tax Court Case Explores Tax Matter Partner SOL Extensions

TEFRA is still with us. Despite the coming launch of new partnership procedures in the Bipartisan Budget Act (BBA), TEFRA will remain relevant, as old cases work their way through the courts and also likely continuing to inform interpretations of many statutory holes in BBA. A recent Tax Court case, BCP Trading and Investments v Commissioner, explores whether alleged conflicts of interest taint what was an otherwise valid extension to the SOL on assessment.

I will skip the sordid details, but the case involves Son of Boss transactions implicating asset transfers to partnerships, with liabilities attaching to the assets in an effort to increase basis in the partnership and thus produce super sized partner tax losses. (Judge Holmes’ opinion describes the transactions for those who like that sort of thing).

The main procedural issue in the case involved claims that the consents to extend to the SOL on assessment that the tax matters partner (TMP) executed were invalid. The argument focused on how the TMP, Bolton, was under the influence of E&Y. E&Y was under criminal investigation for its role in structuring the transactions. That control, according to the argument, meant that the TMP had a conflict of interest, which invalidated the SOL extensions.

There is precedent for invalidating a TMP consent to extend the SOL. Transpac is a Second Circuit case which held that a TMP’s SOL extension did not have effect when IRS turned to a TMP who himself was under criminal investigation, when the partners individually would not extend the SOL.

The BCP Trading opinion (citations removed) describes Transpac further:

The TMP [in Transpac] s were, unsurprisingly, more receptive to the Commissioner’s request. They had “a powerful incentive to ingratiate themselves to the government,” and worked with the IRS in a criminal prosecution of the Transpac promoter because their immunity or suspended sentence depended on it. The TMPs signed the extensions right about the time they were especially trying to coax the government into granting them immunity or agreeing to lighter sentences.

The Second Circuit in Transpac held that the Commissioner couldn’t use these consents to bind the partners because he knew the TMPs had a strong incentive to cooperate with the government and had conflicting interests with the partners.

As BCP discusses, the issue is “very fact dependent.” The opinion distinguishes Transpac for two main reasons: 1) in BCP many of the individual partners did not turn IRS down in the face of individual requests to extend the SOL and 2) the TMP was not under criminal investigation when the IRS turned to him to sign the original extension.

BCP also argued that the E&Y role in the transactions should bring its actions into the lens as to whether the TMP had an impermissible conflict. One of the partnership employees, who started out working at the slippery sounding E&Y group with the acronym VIPER (which stood for Value Ideas Produce Extraordinary Results) went to BCP as a BCP employee to be a liaison with E&Y. BCP argued that the TMP was in effect controlled by the former E&Y/VIPER employee. The opinion gives that pretty short shrift, noting that the former E&Y employee left for messy reasons and that in any event the individual partners also signed consents to extend the SOL.

E&Y’s conduct, beyond its former employee’s role in the partnership, was not irrelevant to a related issue, however. BCP argued that the consents to extend were not valid because E&Y breached its fiduciary duty and exercised undue influence in getting the TMP to sign the consents. The opinion notes that while the consents to extend are not contracts (and should be treated as a waiver of a defense, rather than as a contract itself), contract principles are key to this inquiry. In light of those principles, the argument fell short, looking at contract principles to define undue influence:

Undue influence is unfair persuasion by a person who dominates a party or when, because of their relationship, a party justifiably assumes the person won’t do anything against his welfare.

It was here that the sophistication and extent of the partners’ other advisors worked against the undue influence argument. The opinion details the parade of high-profile advisors other than E&Y that were involved in looking over the shoulder of E&Y. In light of that, the opinion concludes that the evidence did not support a finding that E&Y manipulated the TMP to sign the consents to extend.

Conclusion

As we have discussed before it is difficult to argue against a signed consent to extend. The argument in BCP was a long shot, especially given the partners’ sophistication and the less than appealing atmosphere of a reviled tax shelter.

Can the Wrong Return Start the Statute of Limitations on Assessment

In In re Quezada, the bankruptcy court in Austin, Texas faced the issue of whether a Form 1040 could start the statute of limitations for filing Form 945.  The court declined to grant summary judgment to the IRS finding that the issue was one of substantial compliance and it did not have enough information to make the determination.  Because the issue of one return triggering the start of the statute of limitations for another is not an issue we have previously discussed, the case deserves some attention.

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Mr. Quezada is a brick layer and one whom the IRS says owes $1,269,561.89.  It will take him quite a while to lay enough bricks to pay off a liability of that magnitude.  Mr. Quezada not only lays bricks but he hires others to assist him.  The hiring of others leads to his problems.  Many people worked for him over the years.  He treated these other workers as independent contractors; however, he did not file or send the IRS the necessary forms (e.g. Form 1099) in connection with the payments to these individuals.  His substantial liabilities stem from this failure over a period of several years.

Assuming that the individuals who worked with him were independent contractors, Mr. Quezada still had reporting obligations to the IRS.  The IRS, in this proceeding, did not contest that the individuals working with Mr. Quezada were independent contractors.  He needed to provide the Taxpayer Identification Numbers (TINs) to the IRS of all of these individuals or withhold 28% of certain taxable payments and to report on Form 945 this “backup withholding.”  If an employer fails to withhold the taxes and to file the Form 945, the employer can still avoid liability by showing that the independent contractors reported and paid taxes on the payments received from the employer.  To meet this exception, the employer must obtain a Form 4669 (Statement of Payments Received) from each of the persons treated as an independent contractor.  This form involves the independent contractor declaring under penalty of perjury that a tax return was filed reporting all of the payments received from the employer.  If you have a large number of independent contractors and if some time has passed before the IRS comes looking for compliance with the payment rules, it could prove quite difficult to locate and persuade all of the individuals receiving these payments to sign such a document.

In this case, Mr. Quezada failed to do any of the three things that could have kept him from having a huge liability for the backup withholding.  He did file his own return for the years at issue reporting the income and expenses of the business.  Of course, this provides no assistance to the IRS in identifying the individuals he paid and how much he paid.  Because several years had passed before the IRS came to him to question his employment tax situation, he argues that the time for the IRS to do this has passed.  The IRS counters that his failure to file Form 945, the correct return for reporting the backup withholding, keeps the statute of limitations on assessment open for an unlimited period.

The IRS argued that filing Form 1040, while nice and important for other reasons, has nothing to do with the liability at issue in this case.  The bankruptcy court finds that no court has ruled on the issue of whether a Form 1040 can trigger the three-year limitations period for Form 945; however, it notes that several cases have addressed the issue of one return triggering the statute of limitations where taxpayer has failed to file another return.  The leading case on this issue is Commissioner v. Lane-Wells Co., 321 U.S. 219 (1944).  In Lane-Wells, the issue concerned whether filing a corporate tax return could cause the statute of limitations to run on the taxpayer’s obligation to file a personal holding company return.  The Supreme Court rejected the taxpayer argument that a corporate return would trigger the time limitation for file a personal holding company return.

Finding that the liabilities were separate, the Court found the need to file each of the returns.  The test articulated by the Court was that the statute of limitations is not triggered by the different return if the information in that return is insufficient to “show the facts on which liability could be predicated.”

In a case with facts closer to those presented by Quezada, the Ninth Circuit in Springfield v. United States, 88 F.3d 750 (9th Cir. 1996) held that filing Form 1099 did not start the time period where the taxpayer was required to file Forms 940 and 941.  In that case, the taxpayer treated salesmen as independent contractors rather than employees and then argued that it put the IRS on notice of the issue when it submitted the Forms 1099 for these individuals.  The Ninth Circuit opinion created a narrower test finding that the issue of whether one return could trigger the statute of limitations for another turned on “whether the return filed sets forth the facts establishing liability.”  It found that Form 1099 did not provide the IRS with the necessary information.

The bankruptcy court in Quezada concluded that the rationale in these cases turned on substantial compliance.  It looked at the elements of a return as articulated in Beard v. Commissioner, a case we have discussed often in the context of what triggers a discharge when a return is filed late.  The bankruptcy court determined that the decision of substantial compliance turns on the specific facts of each case and since it did not have the Form 1040 filed by the Quezadas, it could not make a decision at this point.

I have sympathy for the Quezadas because many, if not most, of the individuals paid during the years at issue probably did file tax returns and pay taxes on the wages paid to them.  Probably, the Quezadas will be paying the tax twice in effect.  I will be surprised if the bankruptcy court finds a way to hold that the Form 1040 takes the place of Form 945.  To make matters worse for the Quezadas, if the bankruptcy court finds that their Form 1040 cannot take the place of Form 945, that decision also means that the liability cannot be discharged because of the unfiled return.  I suspect an offer in compromise may be in their future.

9th Circuit Finds No Conflicts of Interest or Duress in Taxpayer Challenges to Extensions of the Statute of Limitations

A recent published Ninth Circuit opinion, Twenty-Two Strategic Investment Funds v US, illustrates the difficulties taxpayers face when they argue that the courts should disregard a consent to extend the statute of limitations (SOL) on assessment due to an advisor’s conflict of interest or a taxpayer’s alleged duress.

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Twenty-Two Strategic Investments involved an investment in the ill-fated KPMG BLIPs loss generating foreign currency investment tax shelter.

For those wanting a brief summary of the shelter, the opinion serves that up nicely:

In order to participate in the BLIPS program, a client would establish a single-member limited liability company (“LLC”), which would take out a specific loan with a participating lender and contribute all of the loan funds to a strategic investment fund, an LLC managed by Presidio, which would then purchase foreign currency assets. After a brief period, usually about sixty days, the client would exit the BLIPS program, the assets would be sold, and the loan would be repaid with interest and pre-payment penalties. The result of this series of transactions was a tax loss for the client approximately equal to the amount of the offset he or she was seeking.

Presto. Tax losses. The only problem was that IRS and DOJ got wind of the scheme, and civil liability and even criminal sanctions followed. This post, however, is not so much about BLIPs but the after effects for one of the unlucky investors who the IRS eventually came after in light of the BLIPs going bust.

The procedural issues in the case turned on the taxpayer arguing that extensions of the SOL on assessment were invalid. There were two reasons that the taxpayer argued the extensions were invalid: 1) the taxpayer’s accountant and return preparer Smith had a conflict of interest which the IRS knew about and 2) the individual taxpayer Gonzales left holding the bag on the consequences of the disallowed losses signed the extension under duress. If the extensions were invalid, the assessments were out of time.

This is a published Ninth Circuit opinion, and that is in part why it drew my interest (there are not so many published circuit court tax procedure opinions). Yet the taxpayer’s arguments were pretty thin.

On the conflict issue, the taxpayer had pointed out that his accountant Smith “instrumental in selling the [tax] shelter to Gonzales,” received a commission for involving Gonzales in BLIPS, and signed the 2000 tax return that the IRS was auditing.”

There are some cases in the TEFRA context (this is a TEFRA case but TEFRA discussions on the blog draw as much interest as last week’s PBS documentary on steel manufacturing in Warsaw Pact countries following the reforms of Soviet Premier Kosygin so I will skip those) where criminal investigations of the tax matters partner resulted in an impermissible conflict that the courts concluded prevented the TMP from binding the partnership.

Here, however, the issue related to the individual taxpayer binding himself, not from a TMP who the courts noted had incentives to extend the SOL that ran directly counter to the individual investors ultimately potentially liable for civil taxes and penalties.

Not enough for a conflict that would bring into question the extension’s validity:

Other than this vague implication of wrongdoing, Gonzales offers no evidence that Smith’s involvement in promoting BLIPS and his involvement in preparing Gonzales’s 2000 tax return combined to create a conflict of interest three years later when the IRS approached Gonzales himself about extending the limitations period. There is no evidence in the record that the IRS contacted Smith during the time he was advising Gonzales to request that Gonzales agree to extend his limitations period. Nor is there evidence that Smith ever provided any advice to Gonzales regarding extending his limitations period. Furthermore, as the district court observed, “[a]lthough Steve Smith represented Gonzales during the audit that flowed from his 2000 tax return, Gonzales had designated different representation before signing the consents.

The remaining issue concerned Gonzales’ argument that he signed the extensions under duress. Duress generally requires evidence of wrongful pressure to coerce someone into signing a contract or other agreement that they would ordinarily not sign. Duress in the tax context is an “action[] by one party which deprive[s] another of his freedom of will to do or not to do a specific act.” Price v. Comm’r, 43 T.C.M. 18 (T.C. 1981), aff’d, 742 F.2d 1460 (7th Cir. 1984).

Gonzales’ duress argument centered on two main events: IRS met with him without his legal representative and an IRS agent served a summons on him at his residence before asking him to extend the SOL. As with the conflict argument, the court had little problem disposing of it as a challenge to the extension.

Gonzales can recall no details of the meeting other than its location. He cannot remember any questions agent Doerr asked him or any particular things agent Doerr said that were intimidating or coercive. His testimony was that he was worried that he might be in legal trouble and that the IRS could ruin his life. His conclusion was founded on inference. However, the fact that the agent declined to assure Gonzales that the IRS would not be pursuing lawful action against him does not justify an inference that Gonzales was deprived of his freedom of will to such a degree that he signed the consents to the extensions under duress.

Similarly, the court noted that there was nothing out of the ordinary with the agent serving a summons at his residence; in fact, Section 7602 provides that it may be “delivered in hand to the person to whom it is directed, or left at his last and usual place of abode.” Simply put, that the summons caused Gonzales stress was not enough; stress or taxpayer fear following IRS agents taking legally authorized actions do not amount to duress.

Parting Thoughts

Taxpayers sign extensions of the SOL for many reasons. After the fact, it is difficult to unwind those extensions, just as it is difficult to unwind a stipulation, as Keith discussed last week here.

The duress issue in this case to me is the more interesting of the two. There are a handful of cases where the courts have found that IRS agents have impermissibly threatened taxpayers to sign documents. For example, in the 1973 TC memo opinion Robertson v Commissioner an agent’s specific threat to seize a taxpayer’s house if he did not sign a form constituted duress.

Duress also comes up in the context of determining whether a spouse agreed to file a joint tax return or other document (including an extension of the SOL) in light of pressure or abuse coming from the other spouse. There are a handful of cases as well looking into whether a spouse’s actions reach the level of duress. That is an issue we discuss in the Saltzman Book treatise; the upshot is that on occasion coercive forces both outside and inside the marriage have reached the level for a court to conclude that the document would not have been signed except for the constraint applied to the taxpayer’s will.

 

Having a Correct Statute of Limitations Date on the IRS System

Chief Counsel Advice 2017040416063446 points to an error in the current IRS calculation of the collection statute of limitations.  The advice concludes with a statement that the author of the relevant IRM provision is “open to revising” the IRM and related exhibit in order to clarify the correct time frame.  This is a rather casual statement regarding something that matters a great deal in certain circumstances.  While it’s nice to learn that the IRS is open to having the collection statute calculated correctly on its system, I would hope it would be desperate to ensure the accuracy of its systems, because otherwise many challenges to its calculations will result.

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Guest blogger Patrick Thomas wrote about the collection statute of limitations previously and the difficulty in calculating this period.  His post includes links to studies by the National Taxpayer Advocate and the Treasury Inspector General for Tax Administration finding that the IRS regularly makes mistakes in calculating the collection statute of limitations.  Les wrote about a case the IRS lost because it incorrectly calculated the collection statute of limitations including the suspension triggered by installment agreements.  The recent CCA points to one of the difficulties and strongly suggests that the IRS current system incorrectly calculates the collection statute of limitations.  Yet, the author of the relevant section of the internal revenue manual governing the calculation of the statute of limitations is merely “open to revising” the manual.

The problem identified in the CCA concerns installment agreement; however, it is a potential problem for many of the IRS systems.  When a taxpayer requests an installment agreement, the statute of limitations on collection gets suspended for the period of time the IRS considers the IA because the IRS is prohibited by IRC 6331(k)(2)(B) from levying on a taxpayer’s property while the IA offer is pending and “if such offer is rejected by the Secretary, during the 30 days thereafter (and, if an appeal of such rejection is filed within such 30 days, during the period that such appeal is pending.)”

Because the IRS wants to make sure that it does not levy if the taxpayer has requested an appeal during the 30 day period, it builds 45 days into its system before it takes collection action after rejecting an IA.  This reasonable decision, which exists in other situations than just the IA, bleeds over into the way the IRS system now calculates the collection statute of limitations.  Instead of suspending the statute of limitations on its system for the period the IA is pending plus 30 days, the statutory time period of suspension, the IRS system suspends the statute of limitations for the period the IA is pending plus 45 days, which includes an extra 15 days for the administrative but not statutory period of suspension.  This extra 15 should not appear in the calculation of the statute of limitations but does.

Someone at the IRS noticed the problem and brought it to the attention of Chief Counsel’s office who, in turn, brought it to the attention of the person with the IRS responsible for setting the time frames on the collection statute of limitations.  The casual response does not leave me with a comfortable feeling that the problem will soon be fixed or that the person is scouring the system to find other instances of the same problem.  Yet, there are times when the IRS takes collection action at or near the last day of the collection statute of limitations.

The timing issue I encountered most often when working for Chief Counsel involved the filing of collection suits.  Department of Justice Tax Division attorneys burdened with many cases and accustomed to working with deadlines routinely filed collection suits very close to the statute of limitations on collection.  They rely, or at least pay attention to, the collection statute of limitations date provided to them in the suit letter by the Chief Counsel attorney who frequently relies on the collection statute of limitations date provided by the client.  Here is one example of how that date is routinely calculated incorrectly.  I suspect there are many others and the earlier work referenced by the NTA and TIGTA would attest to that fact.

The more suspension periods Congress creates the more difficult it is to correctly calculate the statute of limitations, but the IRS must build a proper system or it will routinely seek to collect from taxpayers who no longer owe the tax.  Doing so would violate the taxpayer bill of rights and just be wrong.  The IRS should not be casual about getting the statutory periods correct.  This should be a high priority.