Godfrey v. Comm’r Part I: Does the Failure to Serve a Notice of Intention to Levy on Taxpayer’s POA Create a Basis for the IRS and Tax Court to Accept an Otherwise Late filed CDP Request

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On March 24 the Tax Court issued an Order of Dismissal for Lack of Jurisdiction in the Godfrey case.  Ms. Godfrey filed her request for CDP relief more than 30 days after the IRS sent her a notice of intent to levy (NOIL).  She argues that her late submission of the CDP request resulted from the failure of the IRS to send a copy of the CDP notice to her authorized representative as well as from her failure to receive the notice mailed to her last known address.  This post will focus on the effect of the failure of the IRS to send the NOIL to her authorized representative whose power of attorney was on file with the IRS at the time of the sending of the NOIL.  I draw from the petitioner’s motion in drafting this post and also thank Carl Smith for his comments.

This is the first of three posts on the case highlighting different procedural aspects raised by the facts. Carl Smith has written the last two posts which will follow in coming days.

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Background

Ms. Godfrey’s lawyer first became aware of the issuance of the NOIL (covering income taxes for three years) a few days beyond a year after the NOIL was sent, when he happened to look at IRS transcripts of account for the taxpayer that contained entries indicating that NOILs had been issued for the three relevant years on the same date. The very next day, he mailed to the IRS a Form 12153 requesting a CDP hearing with respect to the NOIL.  Appeals treated the request as one which did not merit any hearing and sent Ms. Godfrey a letter denying her (1) a CDP hearing or (2) an “equivalent hearing” (since requests for equivalent hearings, under Reg. sec. 301.6330-1(i), must be filed within 1 year of the NOIL’s issuance).  She filed a petition in Tax Court within 30 days of receiving the letter denying her any hearings.  The Tax Court issued the order dismissing the case for lack of jurisdiction, finding (1) that the taxpayer did not timely request a CDP hearing and (2) the IRS letter denying her any hearing could not be treated as a notice of determination after a CDP hearing (such a notice of determination being a predicate of the Tax Court’s jurisdiction to review under sec. 6330(d)(1)).

Petitioner now seeks to vacate the order of dismissal which brings with it a steep uphill climb to successfully pursue a Tax Court Rule 162 motion. I will not address the Rule 162 issues (where the Tax Court usually relies on interpretations applicable to similar FRCP Rule 60 motions to vacate in district court) but they may play a part in the outcome of this case.  I am, however, drawing from a motion to vacate the order of dismissal that petitioner filed in this case on April 6.  The underlying arguments deserve attention and perhaps will occur in a different procedural posture in a future case in which the IRS fails to send a CDP notice to the authorized representative.

Section 6304

Section 6304, entitled Fair Tax Collection Practices Act, seeks to import concepts from the Fair Debt Collection Practices Act by incorporating these provisions into the Internal Revenue Code.” [S. Rep. 105-174, 105th Cong., 2d Sess. (Apr. 22, 1998) at 93, 1998-3 C.B. 537, 629]. It restricts the timing and the type of communication on collection matters.  It specifically provides in 6304(a)(2) that the IRS “may not communicate with a taxpayer in connection with the collection of any unpaid tax if the Secretary knos the taxpayer is represented by any person authorized to practice before the Internal Revenue Service with respect to such unpaid tax and has knowledge of or can readily ascertain, such person’s name and address, unless such person fails to respond within a reasonable perod of time to a communication from the Secretary or unless such person consents to direct communication with the taxpayer.”

Section 6330(a)(2) requires the IRS to communicate directly with the taxpayer by issuing the NOIL to her personally.  To this date, seventeen years after passage of the statute, the IRS has issued no regulations. under 6304. If it did issue regulations, the statutory language suggests such regulations should provide that the IRS must always send to a POA a copy of any notice regarding collection that by statute has to be sent directly to the taxpayer (like an NOIL or NFTL) — whether or not the box is checked on the POA to send copies of notices to the POA.  That’s the only way that the purposes of both 6304(a)(2) and 6330(a)(2) can be reconciled and harmonized. The box on the current POA form merely says under the names of two POAs “Check if to be sent copies of notices and communications”.  There are two exceptions to 6304(a)(2) that might apply:  One is if the taxpayer consents to direct communication.  Another is if the POA consents to direct communication.  Checking or not checking the box does not appear to provide sufficient direction for either authorization by the taxpayer or authorization by the POA for direct communication with the taxpayer on collection issues; however, the IRS took a contrary position in SCA 200113004 (Jan. 30, 2001)–when the POA form was different and did not have the current boxes or language to check.  In footnote 7 of that SCA, Counsel wrote:

I.R.C. § 6304, relating to communications with taxpayers and their representatives, does not apply when a CDP notice under either I.RC. §§ 6320 or 6330 is sent to the taxpayer, because these notices are statutorily required to be sent to the taxpayer. Moreover, where a taxpayer and his or her representative have executed a Power of Attorney form, Form 2848, sending to the taxpayer other collection notices or communications entitling him or her to a CAP hearing does not violate section 6304(a)(2). Section 6304(a) provides in relevant part that “without prior consent of the taxpayer … the Secretary may not communicate with the taxpayer in connection with the collection of any unpaid tax … (2) if the Secretary knows such person is represented by any person authorized to practice before the [IRS] … unless such person consents to direct communication with the taxpayer.” (Emphasis added). The execution of Form 2848, constitutes “prior consent of the taxpayer” to direct receipt of either the original or a copy of all written communications, including written communications in connection with the collection of an unpaid tax. By executing such form, the taxpayer’s representative is also consenting to such direct contact.

Given the current language of the POA form, the position taken in the SCA seems wrong.  Indeed, to agree with the IRS that all Forms 2848 — the only form by which the IRS lets one appoint a POA — constitute a waiver of the 6304(a)(2) protections is to say that the IRS can require all taxpayer always to waive the protections of 6304(a)(2).  So, the IRS position in Godfrey may be that signing the POA form waived the right for the representative to receive notice even though the IRS would not have recognized the representative had he not signed the POA.

Tax Court Decision on the Case

The Tax Court treated this case as it would treat a deficiency case in which the authorized representative did not receive the appropriate notice from the IRS. Longstanding precedent in the Tax Court holds that the failure of the IRS to provide the appropriate notice to the authorized representative does not extend the period within which a taxpayer may timely file a Tax Court petition:

In the context of deficiency cases under section 6213(a), we have held that copies of correspondence sent pursuant to a request in a power of attorney are a matter of courtesy and in no way affect the mailing requirements of section 6212. See McDonald v. Commissioner [76 T.C. 750].  It is established law that ‘the failure of the respondent to send a copy of the notice of deficiency to the taxpayer’s counsel, pursuant to a request contained in a power of attorney filed with the respondent, does not affect notice of deficiency has been sent to the taxpayer by… [certified] mail to his last known address’ Allen v. Commissioner [29 T.C. 113]; see also Houghton v. Commissioner [48 TC 656}.

The same rationale applies in the context of a petition for review of the lien or levy action under sections 6320 and 6330. Regardless of whether Mr. Genova should have received copies of IRS correspondence, respondent mailed the levy notice to petitioner at her last known address.”

In citing the deficiency cases as the basis for denying relief where the IRS failed to properly notify an authorized representative, the Tax Court did not address the difference between deficiency cases and CDP cases created by IRC 6304, a provision added to the Code in 1998 at the same time CDP relief was created.

Did the IRS Violate 6304(a)(2)

In Ms. Godfrey’s case the IRS appears to have violated section 6304(a)(2) because it sent a communication directly to her “in connection with the collection of any unpaid tax” by sending her the notice of the filing of the NOIL without sending the notice to her representative which it knew from the Form 2848 he had filed with it. There are four exceptions to 6304(a)(2); however, none of the four exceptions appear to apply to this case.  Although the Tax Court does not appear to have ruled on the issue of whether the sending of the CDP notice of filing of the NOIL is a “communicat[ion] with a taxpayer in connection with the collection of any unpaid tax”, it appears clear that such a notice does fit within the definition of such a communication.  The location of the two statutes, 6304 and 6330, within the same subpart, Subchapter D, of Chapter 64 of the Internal Revenue Code provides further support for that conclusion.  The IRS has not issued regulations concerning IRC 6304 in the 17 years following passage of this provision so no guidance on this issue exists in the form of regulations just as no case law guidance exists.

Although tax law provides little guidance on what to do when the IRS fails to follow the law in this area, guidance does exist in case law developed under the Fair Debt Collection Practices Act found in 15 U.S.C. 1692c.  Communication covered by section 1692c(a)(2) includes written documents and letters.                [Stagikas v. Saxon, 795 F.Supp.2d 129 and Herbert v. Monterey Fin Servs, 863 F. Supp. 75]  While it could be argued that the failure of the IRS to send a copy of the NOIL to petitioner’s representative should play out in an IRC 7433 case for damages rather than in a fight over the jurisdiction of Appeals and the Tax Court to hear the CDP case, the existence of section 6304 puts the whole issue of notice to the representative in a different posture than exists in deficiency cases.  It may seem harsh to allow the IRS to fail to send a taxpayer’s representative a notice of deficiency and then close the door to the court house to that taxpayer because of a late filed petition; however, in that context a specific statutory provision directing the IRS to provide notice to the representative does not exist.  In collection cases section 6304 puts the case in a very different posture.  Here, the IRS has a statutory duty to notify the authorized representative.  To close the court house door on a taxpayer in a situation in which the IRS has violated the statute goes beyond merely rewarding it for failing to something it should have done under its procedures but was not directed by Congress to do.

Conclusion

The order dismissing Ms. Godfrey’s case does not address the differences between CDP cases (collection cases) and deficiency cases. The section 6304 argument was not made to the Tax Court prior to entry of the order so it is quite understandable that the court did not address it.  The Tax Court may now have the opportunity to address this issue and to put the IRS on notice that Congress meant what it said about notice to representatives in collection cases.  Doing so will require addressing arguments concerning jurisdiction and equitable tolling that go beyond this post.  This post serves notice that 6304 should have meaning.  We will explore that meaning in the context of jurisdiction in a second post on this case addressing the remedy for a section 6304 violation.

There will also be a third post on this case discussing whether the Tax Court was right to rely on a regulation providing that an NOIL — if mailed to the last known address, but not received — validly starts, from the date of its mailing, the 30-day period to request a CDP hearing.  There is some legislative history that casts doubt on the validity of that regulation.  Unfortunately, a challenge to the validity of the regulation on this ground will come belatedly in the motion to vacate, not earlier.

Comments

  1. Carl Smith says:

    Kudos to Frank Agostino, who was the first person to point out to all of us that 6304(a)(2) appeared to have been violated.

  2. 1. Thank you, Carl. Glad to be part of the pro bono team.
    2. Consistent with the IRS Mission, The Taxpayer Bill of Rights guarantees “The Right to Be Informed,” “The Right to Retain Representation”, “The Right to Challenge the IRS’s Position and Be Heard”, and “The Right to Appeal an IRS Decision in an Independent Forum” The government’s interpretation of Section 6304(a) is inconsistent with the IRS Mission and the Taxpayer Bill of Rights; I hope that your excellent filings will convince the IRS to rethink its position.

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