For IRS Appeals Office, An Epidemic of Remands

0 Flares Filament.io 0 Flares ×

We welcome back frequent commentor and occasional guest blogger Bob Kamman. As usual, Bob digs into a topic that the rest of us may have overlooked. Today, he writes, and primarily reports, about remands from the Tax Court. Remands in Tax Court cases most frequently occur in the Collection Due Process (CDP) setting in which the Appeals employee reviewing the CDP case fails to properly review some aspect of the case. When Chief Counsel’s office or the Tax Court notices the failure, the case gets sent back to Appeals to fix the problem. In most CDP cases a remand serves as the best result a taxpayer can hope for in the case. It does represent an opportunity for the Appeals to agree with the taxpayer’s position after initially disagreeing but a remand does not necessarily mean the taxpayer will succeed. It generally does, however, signal some failure at Appeals. To that extent, Bob’s research shows that Appeals appears to fail often. Remands can occur after a failed motion for summary judgment by Chief Counsel’s office and we have written often about failures of those motions and particularly the observations of Judge Gustafson. Remands also delay the process. Bryan Camp recently wrote about a case that serves as a reminder of the slow movement of CDP cases which is something Carl Smith and I wrote about in an article in 2011. Today’s post is long which speaks to the problem. Keith

The New York Mets once again have avoided the World Series, but we still recall their first manager Casey Stengel and his immortal question, “Can’t anybody here play this game?”

The same question might now be asked about the IRS Appeals Office. It seems that Chief Counsel is batting clean-up – that is, cleaning up the cases that end up in Tax Court and must be sent back down to the minors for the administrative equivalent of a not-so-instant replay “further review.”

I did a search for the word “remand” in Tax Court orders for the period September 4 through October 4, 2018.   How many motions to remand would you expect IRS lawyers to file in a month? Would twenty seem to be a high number?

read more...

Here is the list, along with excerpts from the orders. Most of these are CDP cases, although one “whistleblower” case appears. Another case came back up a year after a remand, and there were still problems that resulted in an IRS motion for summary judgment being denied.

For many of these cases, a trial date had already been set, some of them within the following month. For one, the IRS asked for the remand at the Tax Court calendar call.

1) Murphy, Docket No. 10992‑18SL. Chief Judge Foley.

ORDERED that the above‑referenced motion to remand is granted, and this case is remanded to respondent’s Office of Appeals for the purpose of affording petitioner an administrative hearing pursuant to I.R.C. section 6320 and/or 6330. It is further

ORDERED that respondent shall offer petitioners an administrative hearing at respondent’s Appeals Office located closest to petitioners’ residence (or at such other place as may be mutually agreed upon) at a reasonable and mutually agreed upon date and time, but no later than December 13, 2018.

2) Morring, Docket No. 13226‑18 L. Chief Judge Foley.

On September 5, 2018, respondent filed a Motion To Remand. Upon due consideration, it is

ORDERED that, on or before October 1, 2018, petitioners shall file an Objection, if any, to the above‑described motion to remand. Failure to comply with this Order may result in the granting of the motion to remand.

3) Ferrie, Docket No. 17979‑17 L. Judge Kerrigan order dated September 12.

This case is scheduled to be tried at the Court’s session in Los Angeles, California beginning September 24, 2018. On September 11, 2018, respondent filed a motion to remand in which it asks the Court to remand this Collection Due Process case to respondent’s Office of Appeals for further consideration. The motion further indicates that petitioner does not object to granting of the motion. Upon due consideration, it is

ORDERED that respondent’s motion to remand is granted and this case is remanded to respondent’s Office of Appeals for purposes of affording petitioner an administrative hearing pursuant to I.R.C. section 6330.

4) Harropson, Docket No. 16313‑17 L. Judge Kerrigan order dated September 19.

This case is calendared for trial at the Court’s session in Los Angeles, California beginning September 24, 2018. On September 18, 2018, respondent filed a motion to remand in which it asks the Court to remand this Collection Due Process case to respondent’s Office of Appeals for further consideration. The motion further indicates that petitioner does not object to the granting of the motion. Upon due consideration, it is

ORDERED that respondent’s motion to remand is granted and this case is remanded to respondent’s Office of Appeals for the purposes of affording petitioner an administrative hearing pursuant to I.R.C. section 6330. It is further

ORDERED that this case is stricken for trial from the Court’s September 24, 2018, trial session in Los Angeles, California, and that the undersigned judge retains jurisdiction. . . .

ORDERED that on or before December 18, 2018, the parties shall file with the Court a joint status report regarding the then‑present status of this case.

5) East Bank Center LLC, Docket No. 7194‑17L. Judge Gale.

On September 15, 2017, the parties, concluding that the foregoing findings in the notice of determination were contradictory, jointly moved for a remand of the case for a supplemental hearing. On September 19, 2017, the Court granted the motion and the case was remanded to Appeals for a supplemental hearing.

The record as currently developed does not demonstrate to our satisfaction that respondent is entitled to a decision in his favor as a matter of law. It is undisputed that SO Kammers, in connection with the supplemental hearing, reviewed petitioner’s 2016 Form 1065 and used the financial information therein as her basis to determine petitioner’s ability to pay. An Appeals officer’s use of a tax return in this manner would appear to contravene Internal Revenue Manual (IRM) pts. 8.23.3.3(5) and (6) (Aug. 18, 2017). In these circumstances, we conclude that summary adjudication is not appropriate. Accordingly, we shall deny respondent’s Motion.

6) Lewis, Docket No. 14911‑17W. Judge Goeke order dated September 26.

This case is calendared for trial at the Session of the Court commencing November 5, 2018, in St. Louis, Missouri.

Upon due consideration of respondent’s Motion to Remand, filed September 26, 2018, it is

ORDERED that petitioner is directed on or before October 15, 2018, to file with the Court a response to respondent’s above‑referenced motion.

7) Barragan, Docket No. 18245‑17L, Judge Kerrigan.

On September 24, 2018, this case was called from the calendar for the Trial Session of the Court at Los Angeles, California, at which time a Joint Motion to Remand was filed. Upon due consideration, and for cause more fully appearing in the transcript of the proceeding, it is

ORDERED that the joint motion is granted and this case is remanded to respondent’s Office of Appeals for the purpose of affording petitioner an administrative hearing pursuant to I.R.C. § 6330.

8) Dennis, Docket No. 398‑18 L. Chief Judge Foley.

Upon due consideration of respondent’s Motion To Remand, filed in the above‑docketed proceeding on August 20, 2018, and first supplement thereto clarifying the Court’s jurisdiction in this matter, filed August 31, 2018, it is

ORDERED that the above‑referenced motion to remand, as supplemented, is granted, and this case is remanded to respondent’s Office of Appeals for the purpose of affording petitioners an administrative hearing pursuant to I.R.C. section 6320 and/or 6330.

9) Akins, Docket No. 22097‑17L. Judge Gale.

This case is calendared for trial at the Los Angeles, California, trial session commencing November 26, 2018. On July 19, 2018, respondent filed a Motion for Continuance and a Motion to Remand therein requesting that the Court continue this case for purposes of remanding it to respondent’s Office of Appeals for a supplemental hearing. By Order dated July 23, 2018, the Court directed petitioner to file responses stating his position regarding respondent’s Motions by August 13, 2018. To date, petitioner has not filed a response to either Motion. The foregoing considered, it is

ORDERED that respondent’s Motion for Continuance, filed July 19, 2018, is granted and this case is stricken from the calendar of the November 26, 2018, Los Angeles, California, trial session, and continued. It is further

ORDERED that respondent’s Motion to Remand, filed July 19, 2018, is granted and this case is remanded to respondent’s Office of Appeals for purposes of affording petitioner a supplemental collection due process hearing under I.R.C. section 6330.

10) Billing Enterprise, Inc., Docket No. 20540‑17 L. Judge Paris.

This case is calendared for the trial at the November 5, 2018, Dallas, Texas Trial Session of the Court. On September 4, 2018, respondent filed a Motion to Remand. After due consideration, it is

ORDERED that jurisdiction in this case is retained by this Division of the Court. It is further

ORDERED that this case is continued from the November 5, 2018, Dallas, Texas Trial Session of the Court until further direction by this Division of the Court. It is further

ORDERED that respondent’s Motion for Remand is granted, IN THAT this case is remanded to respondent’s Appeals Office for reconsideration of petitioner’s request for a collection alternative and to allow respondent to subsequently issue a supplemental notice of determination or other appropriate notice.

11) Horner, Docket No. 15601‑17 L. Chief Judge Foley.

On July 27, 2018, respondent filed a Motion To Remand. Although the Court directed petitioner to file an Objection, if any, to respondent’s motion, petitioner failed to do so. Upon due consideration, it is

ORDERED that respondent’s Motion To Remand is granted and this case is remanded to respondent’s Appeals Office for further administrative hearing pursuant to I.R.C. section 6330.

12) Ceneviva, Docket No. 19445‑17 L. Chief Judge Foley.

On August 28, 2018, respondent filed a Motion To Remand. In it, respondent states that petitioner has no objection to the granting of the motion. Upon due consideration, it is

ORDERED that respondent’s Motion To Remand is granted and this case is remanded to respondent’s Appeals Office for further administrative hearing pursuant to I.R.C. section 6330 wherein the assigned appeals officer shall consider collection alternatives proposed by petitioner as well as any other issue appropriately raised by petitioner.

13) Jenkins, Docket No. 25422‑17 L. Judge Lauber order of September 10, 2018.

This collection due process (CDP) case is calendared on the Court’s October 22, 2018, Washington, D.C., trial session. On November 8, 2017, the IRS sent petitioner a Final Notice of Intent to Levy and Your Right to a Hearing and petitioner timely requested a CDP hearing. On September 7, 2018, the parties filed a Joint Motion to Remand asking that the case be sent back to the IRS Office of Appeals for a supplemental CDP hearing. Upon due consideration, it is

ORDERED that the parties’ Joint Motion to Remand, filed September 7, 2018, is granted, and this case is remanded to the IRS Office of Appeals for a supplemental CDP hearing.

14) McNeil, Docket No. 19965‑17 L. Judge Thornton.

This case is calendared for trial during the Court’s October 1, 2018, Dallas, Texas, trial session. On September 7, 2018, respondent filed a motion to remand stating therein that petitioners have no objection to the granting of said motion. Upon due consideration, it is

ORDERED: That this case is stricken for trial from the Court’s October 1, 2018, Dallas, Texas, trial session and jurisdiction is retained by the undersigned. It is further

ORDERED: That respondent’s above‑referenced motion to remand is granted and this case is remanded to respondent’s Appeals Office for a supplemental collection due process hearing with a new settlement officer for further consideration.

15) Hodges Legends Café LLC, Docket No. 18317‑16SL. Judge Panuthos.

This case is presently calendared for trial at the Trial Session of the Court scheduled to commence on December 3, 2018, at Atlanta, Georgia. On September 13, 2018, respondent filed a Motion to Remand this case to respondent’s Appeals Office. Premises considered, it is

ORDERED that respondent’s motion to remand is granted and this case is remanded to respondent’s Appeals Office for the purpose of affording petitioner an administrative hearing pursuant to I.R.C. section 6330.

16) Whitesides, Docket No. 17752‑17 L. Judge Kerrigan.

This case is scheduled to be tried at the Court’s session in San Francisco, California, beginning October 29, 2018. On September 28, 2018, respondent filed a motion for continuance and a motion to remand in which it asks the Court to remand this Collection Due Process case to respondent’s Office of Appeals for further consideration. The motions indicate that petitioners do not object to the granting of the motions. Upon due consideration, it is

ORDERED that respondent’s motion for continuance is granted in that this case is stricken for trial from the Court’s trial session beginning October 29, 2018, in San Francisco, California, and that the undersigned judge retains jurisdiction. It is further

ORDERED that respondent’s motion to remand is granted and this case is remanded to respondent’s Office of Appeals for the purposes of affording petitioners an administrative hearing pursuant to I.R.C. section 6330.

17) Russell, Docket No. 7757‑18 L. Judge Vasquez.

Upon due consideration of respondent’s motion to remand, filed September 13, 2018, and respondent’s motion for continuance, filed September 13, 2018, it is

ORDERED that respondent’s motion for continuance is granted in that this case is stricken for trial from the Court’s November 26, 2018, Tampa, Florida, trial session. It is further

ORDERED that respondent’s motion for remand to respondent’s Appeals Office is granted and this case is remanded to respondent’s Appeals Office for further consideration. It is further

ORDERED that respondent shall offer petitioner an administrative hearing at respondent’s Appeals Office located closest to petitioner’s residence (or at such other place as may be mutually agreed upon) at a reasonable and mutually agreed upon date and time, but no later than December 17, 2018.

18) Baxter, Docket No. 950‑18L. Judge Lauber.

This collection due process (CDP) case is calendared on the Court’s October 22, 2018, Washington, D.C. trial session. On September 17, 2018, respondent filed a Motion to Remand asking that the case be sent back to the IRS Office of Appeals for a supplemental CDP hearing. Petitioner does not oppose the motion and we shall grant it. Upon due consideration, it is

ORDERED that the respondent’s Motion to Remand, filed September 17, 2018, is granted, and this case is remanded to the IRS Office of Appeals for a supplemental CDP hearing.

19) Lucas, Docket No. 24611‑17 L. Judge Thornton.

This case is calendared for trial during the Court’s November 26, 2018, New York, New York, trial session. On September 21, 2018, respondent filed a motion to remand and stated therein that petitioner has no objection to the granting of said motion. Upon due consideration, it is

ORDERED: That this case is stricken for trial from the Court’s November 26, 2018, New York, New York, trial session and jurisdiction is retained by the undersigned. It is further

ORDERED: That respondent’s above‑referenced motion to remand is granted and this case is remanded to respondent’s Appeals Office for a supplemental collection due process hearing with a new settlement officer for further consideration.

20) Gibson, Docket No. 20421‑17 L. Judge Halpern.

This case is calendared for trial at the Court’s December 3, 2018, Las Vegas, Nevada trial session. On September 26, 2018, respondent filed a motion to remand. Respondent’s motion advises that petitioner has no objection to the granting of this motion. Upon due consideration, it is

ORDERED that respondent’s motion to remand is granted, and this case is remanded to respondent’s Office of Appeals, at respondent’s Appeals Office located closest to petitioner’s residence (or at such other place as may be mutually agreed upon) at a reasonable and mutually agreed upon date and time, but no later than December 27, 2018, for a supplemental CDP hearing with an appeals settlement officer, for the purpose of considering an offer in compromise or other alternative to collection of petitioner’s unpaid taxes.

21) Monaco, Docket No. 25731‑17 L. Chief Judge Foley.

On August 16, 2018, respondent filed a Motion To Remand. Although the Court directed petitioner to file an Objection, if any, to respondent’s motion, petitioner failed to do so. Upon due consideration, it is

ORDERED that respondent’s Motion To Remand is granted and this case is remanded to respondent’s Appeals Office for further administrative hearing pursuant to I.R.C. section 6330. It is further

ORDERED that the above‑referenced hearing shall take place at a reasonable and mutually agreed upon date and time, but no later than November 28, 2018.

22) Maddox, Docket No. 15184‑17 L. Judge Lauber.

This collection due process (CDP) case is calendared on the Court’s October 22, 2018, Washington, D.C., trial session. On August 20, 2018, respondent filed a Motion to Remand asking that the case be sent back to the IRS Office of Appeals for further consideration. By order dated August 24, 2018, petitioners were directed to file a response to respondent’s motion on or before September 17, 2018.

Petitioners did not respond to that order. Upon due consideration, it is

ORDERED that respondent’s Motion to Remand, filed August 20, 2018, is granted, and this case is remanded to the IRS Office of Appeals for further consideration.

23) Kelly, Docket No. 26941‑17SL. Judge Armen.

This case was called from the calendar for the Trial Session of the Court on September 24, 2018 at Chicago, Illinois. Both parties appeared and filed with the Court a joint Motion For Remand. After due consideration, and for cause more fully appearing in the transcript of the proceedings, it is

ORDERED that the parties’ joint Motion For Remand, filed September 24, 2018, is granted and this case is remanded to respondent’s Office of Appeals in order to conduct a supplemental hearing consistent with the aforementioned motion.

24) And finally there is the case of Johnson and Roberson, Docket No. 22224‑17 L, which was discussed here in the text and comments of the blog post for Designated Orders on October 3, 2018. Judge Gustafson suggested a remand, but petitioners declined, doubting that they would get to first base with the Appeals Office.

 

 

 

 

 

 

 

 

Comments

  1. STEVE MILGROM says:

    One reason there are so many remands in CDP cases is that Chief Counsel is, according to at least one attorney in Chief Counsel’s office, they are not allowed to settle these cases. Even when a taxpayer is offering immediate payment in full via a levy on their IRA, Chief Counsel will not settle the case. I was told they don’t have the authority to tell Collections to issue a levy.
    Makes a mockery of the court process where one side will not settle under any circumstance that does not involve a full concession by the other. To make matters worse the Tax Court basically follows the same rule, the go to solution after finding an abuse of discretion is remand.
    This seems to explain why there are so many remands when there is an error in a CDP hearing, practically speaking its the only possible outcome.

  2. Norman Diamond says:

    “Remands in Tax Court cases most frequently occur in the Collection Due Process (CDP) setting in which the Appeals employee reviewing the CDP case fails to properly review some aspect of the case. When Chief Counsel’s office or the Tax Court notices the failure, the case gets sent back to Appeals to fix the problem.”

    Maybe that happens if the petitioner lives in a state that has a Low Income Tax Clinic. If the petitioner is pro se, the IRS and Tax Court refuse to remand.

    ===

    “ORDERED that respondent shall offer petitioners an administrative hearing at respondent’s Appeals Office located closest to petitioners’ residence (or at such other place as may be mutually agreed upon)”

    One might think the Supreme Court ruling in Cook v. Tait would compel the IRS to offer hearings in states where US citizens live — especially in embassies and consulates where the IRS used to have offices but closed them.

    ===

    “One reason there are so many remands in CDP cases is that Chief Counsel is, according to at least one attorney in Chief Counsel’s office, they are not allowed to settle these cases.”

    In one case the IRS’s counsel wrote settlements three times that were not 100% concessions by either party. The IRS and I agreed on the first and third ones but the IRS reneged on both of them. I did not agree to the second one. The case should have been remanded though, because both the IRS and Tax Court knew (I learned later) that an abuse of discretion might have been involved because the penalty should have been collected by offset from the overpayments that were made during the exact same tax years.

Comment Policy: While we all have years of experience as practitioners and attorneys, and while Keith and Les have taught for many years, we think our work is better when we generate input from others. That is one of the reasons we solicit guest posts (and also because of the time it takes to write what we think are high quality posts). Involvement from others makes our site better. That is why we have kept our site open to comments.

If you want to make a public comment, you must identify yourself (using your first and last name) and register by including your email. If you do not, we will remove your comment. In a comment, if you disagree with or intend to criticize someone (such as the poster, another commenter, a party or counsel in a case), you must do so in a respectful manner. We reserve the right to delete comments. If your comment is obnoxious, mean-spirited or violates our sense of decency we will remove the comment. While you have the right to say what you want, you do not have the right to say what you want on our blog.

Speak Your Mind

*