Getting to Appeals

October 28, 2022 by Leave a Comment

Several years ago Les wrote a series of posts, here, here and here, about Facebook’s attempt to use the Taxpayer Bill of Rights (TBOR) to get to Appeals.  I discussed the Facebook case and others raising TBOR arguments in a law review article here.  Les wrote a post in September about proposed regulations addressing access to Appeals and he recently wrote a pair of posts, here and here, on the subject based on a panel discussion at the ABA Tax Section meeting.

This brings us to litigation recently brought in the 11th Circuit regarding the right of a taxpayer contesting a conservation easement case to go to Appeals.  In Rocky Branch Timberlands LLC v. United States, No. 22-12646 the taxpayer wanted to discuss a proposed assessment based on disallowing a conservation easement charitable contribution.  The IRS refused to refer the case to Appeals.  The taxpayer brought suit in district court.  After dismissal taxpayer brought the current appeal. 

After I wrote this post but before we published it, the 11th Circuit dismissed the appeal pursuant to 11th Circuit Rule 42-1(b) because the appellants failed to file a Civil Appeal Statement form with the required time frame.  As discussed below, this case may not have been headed to a successful conclusion for the taxpayers had they gotten a merits decision but this outcome points to the care litigants need to take in understanding and following the rules of the court in which they are practicing.   

read more...

Taxpayer relies on TBOR similar to Facebook but with a twist based on the Taxpayer First Act of 2019. Here is a copy of the complaint.  In the Summary of the Claim section of the complaint, taxpayer lays out the general basis for its case:

1. Plaintiffs bring this suit to challenge Defendants’ denial of Plaintiffs’ right to administrative review and to ask the Court to require Defendants to comply with the Congressionally mandated procedures enacted to safeguard all taxpayers’ rights. The primary question presented here is whether Defendants must comply with the laws as enacted by Congress, or whether the scope of Defendants’ authority to enforce the provisions of the Internal Revenue Code (“Code”) is so broad that it exceeds the statutorily created mandates imposed by Congress and the constitutional norms of due process. More specifically, the question is whether Defendants can ignore Code § 7803(e) and unilaterally deny Plaintiffs the right to independent appeal of Defendants’ proposed determinations.

2. In enacting Code § 7803(e) as part of the Taxpayer First Act of 2019 (“Taxpayer First Act”), Congress established an “Internal Revenue Service Independent Office of Appeals” (“Independent Appeals Office”). Taxpayer First Act of 2019, Pub. L. No. 116-25. Code § 7803(e) states that the Independent Appeals Office is to provide a process for resolving tax controversies without litigation on a fair and impartial basis that promotes a consistent application and interpretation of the Federal tax laws and enhances public confidence in the integrity and efficiency of the IRS.

3. Code § 7803(e), aptly titled “Right of Appeal,” requires the IRS to make the Independent Appeals Office resolution process “generally available to all taxpayers” and further requires the IRS to “prescribe procedures for protesting to the Commissioner of Internal Revenue a denial of a request [for a referral to the Independent Appeals Office].”

The case bears another similarity to Facebook in that the IRS requested an extension of the statute of limitations on assessment and Rocky Branch initially declined to give but later expressed willingness to provide. In Facebook, the taxpayer had granted several extensions but eventually grew tired of doing so.  In both cases the IRS relied on the lack of cooperation in extending the statute to deny the request to go to Appeals. 

The IRS moved to dismiss the case for lack of jurisdiction because the issuance of the FPAA and the filing of a Tax Court petition by Rocky Branch mooted the request to go to Appeals.  Additionally, it argued that the government had not waived sovereign immunity.   In denying the request that the IRS be ordered to send the case to Appeals, the district court first states that it cannot enjoin the IRS from issuing the FPAA because it had already done so.  Then, it addressed the request to order the rescinding of the FPAA.  It declined this request stating it had no authority to rescind the FPAA and doing so would violate the Anti-Injunction Act (AIA).  The court also denied the request to order the IRS to sign the statute of limitations extension.  With request that it compel the IRS to provide it with a review by Appeals, the court found the request moot and found sovereign immunity prevented it from issuing such an order.

Rocky Branch filed its brief with the 11th Circuit on October 19, 2022.  Here is a copy of the brief.  The brief very much frames the issues as ones of taxpayer rights:

1. Whether the IRS is subject to the laws created to address taxpayer abuses identified by Congress;

2. Whether the courts have the authority to enforce laws creating a taxpayer right to due process or whether the Anti-Injunction Act (“AIA”) bars a suit seeking to compel the IRS to comply with the law; and

3. Whether the IRS’s violation of the law and denial of statutorily created due process rights can be reviewed under the Administrative Procedures Act (“APA”). 

It is unclear if the case will make it to the stage of having the circuit court issue an opinion on the merits.  The Tax Section of the Department of Justice has filed a motion for summary affirmance citing to an order issued this summer affirming the dismissal of a case DOJ says is materially indistinguishable.  If the 11th Circuit agrees with DOJ on this, it can end the case without further action. 

Detour to discuss motion for summary affirmance (and Tax Court jurisdiction cases)

I was unfamiliar with motions for summary affirmance in appellate cases until one was filed in the case of Culp v. Commissioner earlier this summer seeking to knock out the Culps dismissal from Tax Court for filling a late Tax Court petition in a deficiency case.  I was stunned in that motion that the Appellate Section did not cite to the Boechler opinion.  The Third Circuit denied the motion quickly as discussed by Carl in a post here.  The Appellate Section filed a similar motion in the case of Allen v. Commissioner currently pending in the 11th Circuit with the same issue as in the Culp case.  This time a mention was made of Boechler in a footnote as the government explained it had no value or impact on deficiency jurisdiction in the Tax Court.  The court’s decision on that motion is still pending. 

The arguments in Culp and Allen and more recently in Frutiger, a Tax Court case involving whether the innocent spouse statute creates a jurisdictional time frame, indicate that the government believes the only path for a determination of jurisdiction in the Tax Court is through the Supreme Court.  The government sees no impact on jurisdiction even where the opinion in Boechler knocked out most of the arguments it makes in other areas.

Conclusion

Because I had never seen this motion before, I do not know how often it is made as a way to quickly dispose of an appeal.  I suspect that Rocky Branch may get knocked out quickly if it is indeed a carbon copy of the case the 11th Circuit dismissed this summer.  If it does not get knocked out through the motion, it faces an uphill battle as neither TBOR nor the Taxpayer First Act explicitly provides a path to the type of relief sought.  The fact that well represented and well-heeled taxpayers continue to make these arguments does suggest the quest to use TBOR for substantive relief continues to resonate.  Maybe one day it will land on a winning argument.

Filed Under: Appeals, Easements, TBOR

Dial, redial, repeat

April 15, 2022 by 8 Comments

We welcome back guest blogger Barbara Heggie. Barb is the supervising attorney for the Low-Income Taxpayer Project of 603 Legal Aid in Concord, New Hampshire.  Her clinic serves taxpayers through the Granite State and is the only LITC in the state.  Today, she describes a recent experience in trying to assist a client.  Her effort reminds us of the difficulties facing taxpayers and practitioners trying to reach the IRS in the first place and trying to reach the “right” part of the IRS.  We recently discussed one of the impediments to reaching the IRS in our post on fee based calling which pushes human callers to the back of the line. Keith

Most people think of the autonomic nervous system as confined to such unconscious bodily processes as breathing, digestion, and heart rate. But most of you reading this have probably added another to the list – (re)dialing the IRS. Pandemic-related staffing shortages, antediluvial technology, and a private robocalling industry have teamed up to render uncertain the once-inviolable privilege of being placed on hold for an hour. Instead, any attempt to reach the IRS by phone, even via the Practitioner Priority Service (PPS), will likely end with this now-familiar recording: “We are sorry, but due to extremely high call volume in the topic you requested, we are unable to handle your call at this time.” A new callback option can spare us the slow torture of short-looped, wondrously-insipid hold music, but it can’t spare us the agony of trying to get there.

read more...

Dial, redial, repeat.

This is all the more agonizing when we realize that a few well-placed, taxpayer-centric changes at the IRS could make this time suck a complete non-necessity. The National Taxpayer Advocate (NTA), Erin Collins, has written here and here about the robocalling problem and the low levels of telephone service at the IRS. And see here for several seemingly doable suggestions regarding economic hardship and collection processes by former NTA Nina Olson in her 2018 Annual Report to Congress.

Last week, I called PPS for a disabled domestic violence survivor subsisting solely on $1,020/month in Social Security Disability Insurance payments. She has a joint tax liability with her estranged husband, and she’s terrified he’ll get to her through the IRS. Each new collections notice sent her to the phone, anxious to explain her circumstances and request some sort of forbearance. But she couldn’t get past the “extremely high call volume.”

She came to me for help, and we decided I would start by asking the IRS to (1) record her balance-due accounts currently not collectible, due to financial hardship, and (2) place a domestic violence marker on all her accounts to prevent the IRS from releasing any of her contact information to an unauthorized person, including her husband. Conceivably, each of these requests could be made in writing, but much harm could come to this client while waiting for the IRS to process such submissions. A call to the IRS was required.

After dialing PPS sixteen times, each attempt involving a must-listen to various recorded messages, I made it onto the queue. Huzzah! I readily agreed to the callback option and got connected to a customer service representative (CSR) a half an hour later, just as promised. He placed a Victim of Domestic Violence (VODV) marker on my client’s accounts but said he could not record her balances uncollectible. I was surprised, given that I had chosen the menu option for “individual accounts already in collections, ACS.” Moreover, for balances at my client’s level, the Internal Revenue Manual requires no Collection Information Statement (CIS) if the only source of income is Social Security. But there had been a change in procedures, the CSR explained, and he offered to transfer me to the “real” Automated Collection System (ACS), where someone could do as I had requested.

Rather than have him transfer me, however, I decided to call PPS again – not because I thought a different CSR would give me a better answer, but because this one wasn’t able to send me the transcripts I wanted due to some equipment failure he was experiencing, and I wasn’t sure an ACS CSR would have the authority to do this. I hadn’t been able to retrieve the transcripts myself from the IRS Transcript Delivery Service (TDS) because . . . I don’t know. The CSR affirmed I had been listed on the accounts as an authorized representative for several days, but TDS said otherwise and refused to give up the transcripts. (This doesn’t appear to be an isolated incident; recently, many others in the Low-Income Taxpayer Clinic community have reported the same problem.)

Thus, I called PPS again.

Dial, redial, redial,

redial, redial, redial,

redial, redial, redial,

redial, redial, redial.

Just twelve times! The second PPS CSR got me the transcripts but said the same thing as the first one; the CNC request can only be handled by ACS personnel, no matter the circumstances. (A week later, TDS is still denying me access to these accounts.)

The CSR offered to transfer me to ACS, and this time I agreed. After a few minutes, another CSR picked up the line, and I made my simple pitch: please record my client’s balance-due accounts as uncollectible because her only income is Social Security and she’s experiencing financial hardship. This CSR, #3 of the day, said he couldn’t see any debt under my client’s SSN – and, therefore, couldn’t help me. I stressed it was a joint liability, with my client listed as the secondary on the account. The CSR responded that this explained the problem and asked if I had any other questions. Telling him that the previous two CSRs of the day hadn’t had any such problem left him unfazed. When he suggested transferring me to “Collections,” I agreed, not bothering to ask where I had been the whole time.

The beauty of a unit-to-unit transfer is that you bypass the hold queue and go straight to a CSR picking up your line. At least, that’s how it used to be. This time, it took over two hours – the longest hold time I’ve ever encountered. Luckily, however, CSR #4 of the day was able to both see and do. I made my pitch for uncollectible status and explained the client’s income stream. The CSR verified the Social Security income, found no other sources, and granted the request for uncollectible status. As expected, she didn’t require a CIS. And by then, it was bedtime.

Fans of the Python-esque film Brazil may find some commonalities.

Filed Under: Collection Activity, TBOR Tagged With:

State Level Taxpayer Rights: A Survey of State Tax Administration

April 4, 2022 by Leave a Comment

We welcome back guest blogger Anna Gooch, who last year joined the the Center for Taxpayer Rights as a Research Fellow. Next fall Anna will begin a Christine A. Brunswick Public Service Fellowship sponsored by the ABA Tax Section, where she will continue working to further taxpayer rights. Christine

Under a grant from the Rockefeller Foundation, the Center for Taxpayer Rights has developed a survey of state tax administration practices and procedures to better understand how taxpayer rights are protected. The survey gathers information relating to income tax (where applicable), property tax, sales tax, and any other statewide tax that the state may have. In each of these sections, the questions are divided into categories, including Assessment, Appeals, Collection, and Litigation. Volunteers are asked to provide an explanation as well as a citation to their response when possible. Once the information is collected, we will make recommendations for administrative procedures for practices that work well, and we will propose model legislation for state funding of low-income taxpayer clinics and the establishment of state taxpayer advocate/ombuds offices. We will also identify areas of deficiency in taxpayer protections and advocate for change where we believe taxpayer rights are in jeopardy.  The Center plans to hold a Reimagining Tax Administration workshop in the fall of 2022 to discuss the survey findings and recommendations.

”read

Why do a state taxpayer rights survey?  Unlike the federal government, states often operate under balanced budget requirements and cannot create money, so they rely heavily on tax collections to provide services and programs.  They do not have the same infrastructure for tax compliance as the federal government, so they also rely on the IRS to identify taxpayers with audit issues and make parallel adjustments, and they utilize private debt collection agencies to a great extent.  Moreover, states heavily rely on data mining to identify non-compliance and issue automated notices; this approach places burden on taxpayers, especially those who are low income. Most states do not provide the same protections and collection alternatives for taxpayers experiencing economic hardship; several states automatically file notices of tax liens when a debt arises and others revoke drivers’ licenses if a tax debt is above a certain dollar amount.

With the help of the LITC community and the ABA’s State and Local Tax Committee, we have spent the last several months recruiting volunteers to complete the survey for each state. The survey was sent to the first group of volunteers in early January, and we are starting to receive completed responses. As of this writing, we have received responses for five states: Alabama, Illinois, New Jersey, Utah, and Texas. While it is too soon to make any conclusions, I am happy to share some preliminary data from the first few responses. The survey contains about 200 questions in total, but below are some key findings that I find particularly interesting.

Of the five states for which the Center has received a response:

  • Two regulate commercial return preparers (Alabama, Illinois).
  • All regulate property appraisers.
  • Four use private collection agencies for income tax debts (Illinois, New Jersey, Utah, Texas).
  • One state funds LITCs to help taxpayers with state tax issues (Illinois).
  • All have physical locations where taxpayers can receive assistance from the tax agency.
  • Only one state offers forms and guidance in languages other than English (Texas). 
  • Three have state taxpayer advocates that may help taxpayers with income tax and sales tax issues (Alabama, New Jersey, Utah). One has a taxpayer advocate office that may assist taxpayers with property tax issues (Utah).
  • All have a taxpayer bill of rights.

There are still a few states for which we are seeking volunteers. Those states are:

  • Hawaii
  • Montana
  • Nevada
  • North Dakota
  • Oklahoma
  • Vermont
  • West Virginia
  • Wisconsin
  • Wyoming

If you would like to complete the survey for any of the states listed above (or if you know someone else who may be interested), please email anna@taxpayer-rights.org. As noted above, we plan on holding a workshop in the fall to share our findings, as well as best practices and recommendations. Thank you to our volunteers – this project would not be possible without your assistance.

Filed Under: TBOR Tagged With:

Can the Taxpayer Bill of Rights Assist in Overturning a Criminal Conviction?

June 16, 2021 by 2 Comments

No.

That’s the short answer.  We have written before about ability, or lack of ability, of the Taxpayer Bill of Rights (TBOR) to protect someone from IRS action or inaction that the taxpayer views as a violation of TBOR here, here and here.  I wrote a law review article on this subject you can read here.  It was part of a symposium at Temple a couple years ago that looked at TBOR broadly.

In the case of United States v. James D. Pieron Jr., No. 1:18-cr-20489 (E.D.  Mich. 2021), the taxpayer sought to raise TBOR to overturn his conviction.  In a result that seems rather predictable, the court denied his motion.  While the result provides no surprises, this is the first case I have noticed where a taxpayer sought to use TBOR to find protection from criminal prosecution or conviction and deserves some mention because of that.  While Mr. Pieron’s lawyers, who seemed to be a bit of a revolving door, score points for inventiveness, the court did not spend too much time disposing of this argument.

read more...

Mr. Pieron was convicted of tax evasion related to the sale of a business and his failure to pay the tax on the significant gain resulting from the sale.  During the trial he put into evidence, over the objection of the IRS, the TBOR list.  I have not read the pleadings but from the statements by the court, I believe that the core of his argument relates to the failure of the IRS to provide him with information.  I am guessing, but he may have been frustrated during the criminal investigation that the rest of the IRS would not talk to him and would not provide him with information.  This is normal IRS practice.  If a revenue agent is auditing a taxpayer and reaches the point of deciding that criminal prosecution is warranted, the agent will go silent, not wanting to use the civil process to build a criminal case.  At some point out of the silence will emerge the special agent whose only focus is determining if a criminal case exists.  Only at the end of the criminal case does the revenue agent return to the scene.  A frustrated taxpayer seeking information when the revenue agent goes silent but before the special agent appears may feel that a violation of the right to know has occurred.  It’s possible that the taxpayer alleged other violations of TBOR but this is the one that appeared to be the core of the concern.

The district court did not find this to be a concern that should cause the overturning of the conviction.  It stated:

Defendant has, throughout these proceedings, attempted to portray his prosecution as the undue product of an unresponsive bureaucratic machine that has refused to engage with him in any reasonable way. During the cross-examination of IRS Revenue Agent Robert Miller, defense counsel introduced the Taxpayer Bill of Rights and attempted to elicit testimony regarding its application. See ECF No. 51 at PageID.423–26. Defendant’s primary contention seemed to be that the IRS had wrongfully entered a “freeze code” in his case that prevented any communication between him and the IRS once the criminal investigation was pending. Id. at PageID.422–23. Over the objection of the Government, the Taxpayer Bill of Rights was admitted into evidence. Id. at PageID.425. Defense counsel later referenced the Taxpayer Bill of Rights in closing argument while discussing Defendant’s alleged mistreatment. Defendant’s briefing is likewise replete with alleged instances of IRS misconduct, including the Service’s apparent failure to provide him with notice of his tax deficiency or meet with him and his accountant to resolve his tax liabilities.

In some ways, the taxpayer wants to be relieved of his conviction because the IRS followed the rules laid down in prior criminal cases that require it to stop its civil activities once it reaches the point of believing a crime might have occurred.  He seeks to pit TBOR against the rules designed to protect taxpayers from an end run around criminal notification.  Alternatively, he argues that the IRS should continue its civil investigation parallel with the criminal one.  The court does not frame this clash of policies the same way that I have, perhaps because it simply does not believe that TBOR plays a role here.  In its conclusion on this issue it says:

Defendant has identified no authority supporting his theory that a violation of the Taxpayer Bill of Rights offends the Fifth Amendment. Defendant correctly notes that, in some instances, an “agency’s failure to follow its own regulations . . . may result in a denial of due process.” ECF No. 177 at PageID.4007 (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004)). But no court in this circuit or any other circuit has ever held that the Service’s failure to comply with the Taxpayer Bill of Rights violates due process or otherwise warrants dismissal of the indictment. Indeed, the remedy that the Internal Revenue Code provides for violations of the Code and Treasury Regulation is a civil action for damages. See 26 U.S.C. § 7433(a). With similar reasoning, the Ninth Circuit previously declined to vacate a criminal conviction based on the Service’s violation of the Taxpayer Bill of Rights. See United States v. Bridges, 344 F.3d 1010, 1020 (9th Cir. 2003) (noting that the “Taxpayer Bill of Rights [does not] authorize the suppression of evidence or the reversal of a criminal conviction.”); accord United States v. Tabares, No. 115CR00277SCJJFK, 2016 WL 11258758, at *8 (N.D. Ga. June 3, 2016), report and recommendation adopted, No. 1:15-CR-0277-SCJ-JFK, 2017 WL 1944199 (N.D. Ga. May 10, 2017).

As you know from our prior discussions, TBOR has not been successfully used to make a dent in civil cases as of yet.  It would be quite surprising if it plays much of a role in criminal cases but the failure here does not mean that the next defendant cannot find a different way to try to interject TBOR into the outcome of a criminal prosecution.

Filed Under: Criminal Penalties, TBOR

Technology and Taxpayer Rights

June 10, 2021 by 4 Comments

This post includes information about the IRS’s plans to use AI to assist taxpayers. For more insight on the legal risks tax administrations face from using AI-enabled systems, including risks to taxpayer rights, there is a Zoom lecture hosted by Antwerp and VIA Universities, HMRC, the Prosperity Collaborative, and the Center for Taxpayer Rights today, June 10, 2021 at 9 am ET, the link to attend is here.

The IRS’s outdated technological capabilities are well known, and the pandemic further stretched the already struggling system. Prior to the pandemic, the IRS had been tasked with examining ways to improve its technological capabilities pursuant to a provision in the Taxpayer First Act (“TFA”),  which required the IRS to implement a multi-year strategic plan for information technology by July 1, 2020 and to submit written plans for comprehensive customer-service, employee training, and organizational redesign to Congress by September 1, 2020. The pandemic delayed this submission, but the IRS submitted a combined report on all three topics to Congress in January of 2021, aptly titled the Taxpayer First Act, Report to Congress (“TFA Report”).

Tax scholars and academics have long been considering ways in which the IRS should prioritize updating its technological capabilities. In an article titled, Moving Tax Disputes Online Without Leaving Taxpayer Rights Behind, (available here), Professor W. Edward Afield asserts that if the IRS prioritizes its technological development efforts on tax controversy resolution, it could advance its customer service and enforcement goals while protecting and enhancing taxpayer rights.

The TFA Report contains some of Prof. Afield’s ideas and potentially lays the groundwork for his other ideas to be possible in the future.

read more…

Prof. Afield argues that the IRS could “increase its use of technology-based interactions with taxpayers in the controversy-resolution process” by: 1) providing more information about notices online, 2) allowing taxpayers to satisfy their tax obligations online, and 3) developing partnerships with the nonprofit and academic sectors to produce technological platforms and provide access to information and dispute-resolution tools.

1. Improved Online Information About Notices

The IRS could utilize technology to serve its goal of improving taxpayer compliance, while ensuring that taxpayer rights are protected by providing more comprehensive information about notices online. The IRS’s design choices for certain notices have been criticized as confusing to taxpayers, but that confusion is especially dangerous when a notice informs a taxpayer of proposed actions that implicate his or her due process rights. Although the IRS website contains some additional information, the most critical information about how, why and when to respond to due process related notices is not prominently displayed. As a result, taxpayers don’t exercise their rights. According to an NTA report, less than 1% to 10% of taxpayers respond to collection due process notices.

Prof. Afield references research from Prof. Morse who states, “The Service’s tendency to ‘bury the lead’ concerning critical information not only hurts taxpayers but can also negatively impact the Service, a lack of salience in a variety of Service communications limits the ability of the Service to shift taxpayer norms toward compliance and thus may increase the size of the tax gap.”

Prof. Afield argues that there are ways the IRS could explicitly encourage taxpayers to exercise their rights, such as by sharing taxpayer success stories or statistics about how many other taxpayers request collection due process hearings.

Prof. Afield argues that providing “easy-to-understand explanations to taxpayers on its website is relatively ‘low hanging fruit’ for which the service can use technology in a way that conserves resources while enhancing taxpayer rights.”

The IRS appears to agree with this in the TFA Report. The IRS plans to redesign notices by simplifying the format and providing information in a manner that is easy to read without unnecessary legal language. It also wants to provide clear information and plain instructions to the taxpayers about why they are receiving communications and what actions they need to take, including instructions for using online accounts for more detailed account information. In line with this, the IRS wants to further enhance notices with unique confirmation numbers linked to a specific taxpayer’s case and QR codes linked to additional information resources.

The IRS plans to utilize digital notifications to allow for customized notices available through online accounts and allow taxpayers opt-in to received notifications about changes, payment reminders and status updates. It’s not difficult to imagine that reminders could be created for CDP hearing request deadlines, Tax Court petition deadlines, and more.

Another way IRS is using technology to enhance taxpayer rights is by improving the access that tax professionals have to their clients’ information. The IRS wants to provide “secure access to clients account information and notices and perform other account services and representational duties through their online account.”  

A large of focus in the TFA Report is on developing multi-linguistic notices and communication capabilities.  They intend to identify necessary language translations and use data to improve communication effectiveness among different populations.

2. Enhancing Ability to Satisfy Tax Obligation Online

Prof. Afield discussed that other academic commentators and government advisory committees have recommended the development of a single online platform that integrates online services already available to taxpayers (such as checking on refunds and obtaining transcripts) and adds additional capabilities to do things such as view communications, view the status of issues, address underpayments and penalties, and respond to IRS inquiries.

The TFA Report reflects these recommendations. It proposes a more interactive and personalized online experience and expanded digital services where taxpayers can view the history of payments, refunds, amounts owe, and returns filed; update contact information and other details; utilize digital signatures; and exchange documents and communicate by chat with the IRS securely.

Prof. Afield argues that the IRS should also expand its online services to include online dispute resolution options and algorithmic decision making for collection alternatives that “rely on mathematical determinations of collectability.” Building upon the already existing technology the IRS uses for streamlined installment agreement determinations and the offer in compromise pre-qualifier tool, the IRS could develop a system that would allow taxpayers to enter information and upload documents for cases where an inability to pay is easily demonstrated. These types of cases exist, LITCs encounter them regularly.

Prof. Afield understands that algorithmic decision making is not appropriate for all cases, but a modified form of ODR could be utilized where one IRS employee is assigned to the case and the taxpayer can communicate with the assigned employee via an online portal to resolve the case more efficiently.

The IRS’s plans could lay the groundwork for more ODR options to exist in the future. The TFA Report discusses plans to use an artificial intelligence powered informational web chat to answer questions or direct taxpayers to helpful information and connect taxpayer to assistors and live support, if needed. If a chat bot cannot resolve issue, taxpayers will also have option to schedule an appointment with employees in exam and collection in-person, by telephone, or by secure video chat. One could imagine ODR possibilities arising from this, especially after the ability to upload documents and exchange information securely is developed.  IRS is open to learning and adapting based on data and information as they collect it, and has created new positions within the organization that focus on these areas.

Prof. Afield also references the work of Prof. Blank and Prof. Osofsky, who have performed extensive research in this area, were recently chosen to assist with these efforts by studying the use of automated legal guidance by federal agencies by the Administrative Conference of the U.S.

3. Nonprofit and Academic Partnerships

Using partnerships with nonprofit organization and academic institutions to fill gaps and assist vulnerable groups, is the third area Prof. Afield believes the IRS should prioritize. These partners could be tasked with developing technology that can further assist taxpayers and essentially serve as technological translators between taxpayers and the IRS. One such idea is technology that utilizes easy-to-understand questionnaires to complete a Tax Court petition or collection form; or informs taxpayers about the range of procedural options available to them based on their specific circumstances. This could reduce the demand for personal assistance, but such assistance would still be available when needed.

Relying on non-profit motivated institutions to develop and implement these types of technology could also help taxpayers more quickly while the IRS to goes through the slow and deliberate process of experimenting with different improvements.

The TFA Report states that the IRS is interested in building on existing partnerships and creating news one in order to “address issues of communication, education, transparency, trust and access to quality products and services like customized education and outreach in various languages.”

Offline, the IRS wants to expand upon this with further community outreach to community centers, cultural and faith communities and organizations, chambers of commerce, and engagements with schools. It also believes that co-locating IRS services with other government services (such as post offices, U.S. embassies) can assist the IRS in helping taxpayers to access services and resolve issues.

Online, the IRS wants to create partnerships that allow for virtual seminars, and secure and authorized data sharing opportunities amongfederal and state agencies, Security Summit25 participants, and other third parties to drive enforcement decisions, combat identify theft and improve the taxpayer experience.

Risks and Benefits

Prof. Afield also discuss the risk of overreliance on technology, such as a reduction in in-person assistance (which budget constraints have already caused), the intentional and unintentional biases in algorithmic decision making, and the risk that for-profit companies could develop ways to exploit vulnerable taxpayers, in addition to the more common concerns about data breaches and government overreach.

The TFA Report surmises that taxpayers could be more protected from identity theft if the IRS is able to request and verify taxpayer information more quickly and easily. Prof. Afield postulates that if the IRS is intentional and smart about its development and implementations, the benefits will outweigh the risk. If technological solutions are implemented carefully, they could allow IRS to better serve taxpayers, protect taxpayer rights, and meet cost and efficiency goals. The TFA Report aims for the first phase of multi-year plans be implemented between now and the end of 2022 if it receives enough funding, and even though a lot has changed, that’s still a big “if.”

Filed Under: TBOR

A Motivating Reminder

May 5, 2021 by Leave a Comment

Nina Olson identified a need, which created a movement and changed the landscape of America’s tax system forever. She started the Community Tax Law Project in 1992 and the Revenue Restructuring Act, (“RRA”), which ushered in a new era for taxpayer advocacy (including the Taxpayer Advocate Service and the role of National Taxpayer Advocate (“NTA”)) was passed in 1998.

The Pittsburgh Tax Review’s Fall 2020 publication focuses on different facets of Nina’s life and career. It features articles from Nina’s esteemed colleagues and friends, including Keith and Les. It is an incredibly inspiring symposium, especially during this time when it’s easy to feel overwhelmed and burnt out. I touch on some of highlights, but each of the articles are worth reading in full- especially if you are an LITC practitioner. The entire publication is available here.

read more...

There were many times reading through the publication that I could envision the energy of the moments. There are gems throughout (even in the footnotes): the car rides shared by Nina and Keith, their remarkable and supportive friendship, the discussions by the Senate Finance Committee about the role of the Taxpayer Advocate in the Department of Treasury’s hierarchy, the growing pains of transforming TAS into what it is today, and the ripple effects Nina has created with her work.

The tribute is an insight into the way that Nina thinks, works, and approaches challenges and it is incredible. Stories about Nina’s profound impact on people (tax practitioners and taxpayers, alike) are interwoven with stories of her profound impact on policies and procedures.

Many of the stories allowed me to revisit the period in my life when I stumbled upon the LITC world and the excitement I felt after learning that I could be the type of lawyer that I had always wanted to be. I could practice tax law, truly help people, and hopefully have a positive impact on the world.

Nina ran a tax preparation and accounting business for nearly as long as she was the NTA, and then went on to graduate from law school only ten years before becoming the NTA.

In an article written by Nina, she reflects on the opportunity to become the NTA and how it aligned with her plans and passion to continue advocating for taxpayers after ensuring that the Community Tax Law Project was well-established and self-sufficient. She acknowledges the work of the teams of people that made her successes possible. She also humbly states that the intention of her article is merely to recount her experience and her thoughts. It is, of course, much more than that- and it is a rare and exciting look at the life experience of a zealous leader.

Nina testified before Congress, before she ever imagined being the NTA, about the role the NTA should play and the need for strong leadership, without realizing that she was describing herself – a self-fulfilling prophecy of sorts. She states, “Little did I know then that I would have that responsibility one day […] the furthest thing from my mind was to become the National Taxpayer Advocate. In 1998, my sole focus was building The Community Tax Law Project.”

Things that many practitioners now take for granted were so hard fought, won, and paved the way for the ability of TAS and LITCs to advocate for taxpayer rights. Any difficulties Nina encountered were transformed into opportunities to learn and improve

The stories contained in the tribute demonstrate Nina’s relentless passion for advocacy, her ability to call the IRS out on its absurdities and remain steadfast to TAS’s purpose and mission, which she helped develop.

Nina recognizes that conventional wisdom typically states to “choose your battles wisely” but that is not possible when it comes to taxpayer rights and being too selective about battles only makes it harder to get things accomplished later.

Some of the stories highlight how Nina’s quick wit is one of her best weapons. For example, Nina reflected on the frustration she felt at the underutilization of Taxpayer Assistance Orders early in her time as NTA. She recalled that, at a TAS training symposium, “A member of the audience approached the microphone and said that many of them had good relationships with IRS employees and issuing a TAO would harm those relationships going forward.”[Nina] was silent for a minute, and then said, “If issuing a TAO will harm that relationship, then you don’t have a ‘relationship’—you have unrequited love.”

And there was the time when an IRS Operating Division advisor had asked her to look at things from his perspective. She countered that it is her job and she is required by law, to look at things from the taxpayer’s perspective, the rest of the IRS can look at it from the IRS’s perspective.

Everything boils down to the impact Nina has had on the lives of America’s taxpayers, which includes all of us. As Caroline Ciraolo writes, “[b}ehind every legal issue is a taxpayer, a family, or a community that will benefit from our efforts,” as Prof. Lipman writes, “the federal income tax system exists for people,” and as Prof. Cords writes, “taxpayer rights are human rights.”

The pandemic has shown us that we are all interconnected, and not caring for the most vulnerable of our population can leave us all more vulnerable. Nina’s work advocating for low-income taxpayer, for credits that help lift children and families out of poverty, and for the Taxpayer Bill of Rights, among other things, helps the most vulnerable and positively impacts us all.

The fight for taxpayer rights never ends and resistance by the powers that be- in the name of cost and efficiency- never wanes, but Nina and what she has created, and continues to create, empowers tax practitioners to feel like we can effectuate real and meaningful change. The tribute to her in the Pittsburgh Tax Review was wonderful and motivational reminder of that.

Filed Under: Taxpayer advocate, TBOR

Court of Federal Claims Rejects Taxpayer Bill of Rights Argument

December 4, 2020 by 11 Comments

In October my grandchildren, John, Lily and Sam came to the farm for pictures before the soybeans turned brown.  In this photo they left a spot for their sibling who had not yet arrived.  Last night about 7:00 ET Rosemary Lucia DuMont aka “Rose”, pictured here with mom, arrived.  Rose brings a happy ending to an otherwise challenging and memorable year. Keith.

In the recent case of Shnier v. United States, No. 18-1257 (Ct. Fed. Cls. 2020) the Court of Federal Claims addressed arguments by pro se taxpayers that the proposed outcome in their case violated the Taxpayer Bill of Rights (TBOR).  Following another recent case decided by the Court of Federal Claims, the court rejected the TBOR argument as well as the substantive arguments put forward by the Shniers.  The case does not cover much new procedural ground but does add another court to the list of courts unwilling to create substantive remedies for violations of TBOR.  Here, the alleged violations were quite a stretch.  So, the court faced neither a situation in which the facts might have created a compelling argument nor advocacy by someone skilled in that art.

read more...

The Shniers moved to the US from Canada.  Mr. Shnier’s family in Canada owned a business and he inherited an interest in the business.  One aspect of the business structure established in Canada involved an entity essentially established as a holding company.  Mr. Shnier received money from the holding company and did not report it.  Eventually, the IRS determined that the income was taxable in the U.S. and that it was subject to the PFIC rules.  The Shniers argue that the PFIC rules should not apply in this situation because the intention of the rules was to tax individuals seeking to avoid US tax by establishing an account overseas.  Since Mr. Shnier’s ownership of the business arose from the fact of inheriting an interest in a Canadian, his motives fell outside of the PFIC rules according to him.

The court goes fairly deeply into the jurisprudential background of statutory interpretation in situations in which the role of the statute and the language of the statute do not precisely align.  It quotes from a law review article written by my dean, John Manning, and from an article written by recently seated Supreme Court Justice Barrett in holding that the goal of the legislature is to write the laws.  It declines to recast the language of the laws to find in them a meaning that suits the needs and interpretation of the Shniers.

In addition to arguing about the correct interpretation of the statutory language, the Shniers argue that they should receive the relief they request, a refund of the taxes paid, because of TBOR.  The court notes that

Another judge on this court recently held “[i]t is plaintiff’s burden to establish jurisdiction for his claims founded on the Taxpayer Bill of Rights, but he has not shown that the ten rights listed at I.R.C. § 7803(a)(3) are money-mandating so as support this court’s jurisdiction under the Tucker Act.” Yates v. United States, No. 20-169T, 2020 WL 5587366, at *6 (Fed. Cl. Sept. 18, 2020) (Sweeney, J.)

It cites to the case of Facebook, Inc. v. IRS, No. 17-CV-06490, 2018 WL 2215743, at *13 (N.D. Cal. May 14, 2018) holding that the TBOR created no new rights and then quotes from the Tax Court’s decision in Moya v. Commissioner stating:

TBOR exists “not[to] . . . create new rights or remedies, only to group existing rights into categories that are easier for taxpayers and IRS employees to understand and remember. Thus, a TBOR does not create new rights, but provides organizing principles—a framework—for statutory rights.” 152T.C. 182,196 (2019) (emphasis in original) … the Commissioner had no power to legislate any new rights,” leading it to “conclude that, in adopting its TBOR in 2014, the IRS did not create for taxpayers any rights or remedies that they did not theretofore enjoy.” Id. at 197

While Moya considered the IRS’s administrative adoption of TBOR prior to Congress’ adoption of TBOR (and thus is arguably dicta in its consideration of the legal effect of TBOR’s codification), its reasoning reflects the judicial perspective to date on TBOR’s legal impact in cases arising in deficiency context.

Moya concerned the impact of supposed mistreatment in an examination that led to a deficiency case in Tax Court, In Shnier, which arises in a refund suit in the context of the meaning of the technical PFIC rules, the taxpayers made the following specific arguments regarding TBOR:

  1. their “right to be informed” was violated because they did not know about the PFIC laws until an accounting firm alerted them;
  2. their “right for quality service” was violated because “[t]here is no specialized telephone help line” for compliance questions;
  3. applying the PFIC laws to “pre-existing non-willful foreign passive assets that have not been funded directly or indirectly by US sourced monies” violates their “right not to be discriminated against” because had they “been American [s investing in]…an American company…the taxation rules would have been less harsh, non-punitive, and easier to comply” with; and
  4. their “right to a fair and just tax system” was violated because “it [is] extremely unfair and unjust that the punitive, complex, and expensive to comply [with] PFIC tax laws which were created for an entirely different target and purpose, would be applied” to them.

The court rejected all of their arguments.  After discussing each of the arguments in turn, it stated:

The Court finds the reasoning from the courts in Yates, Facebook, Inc., and Moya persuasive; even plaintiff agrees the TBOR does not override the text of the tax code. OA Tr. at 49:13–17; see Yates, 2020 WL 5587366, at *6; Facebook, 2018 WL 2215743, at *13; Moya v. Comm’r, 152 T.C. at 196. Despite the forcefulness of the equitable concerns plaintiffs raise, the Court holds it does not have the power to interpret or apply §1291 contrary to the plain text of the statute as established

The decision here is not surprising.  As I mentioned in an article published last year, taxpayers will have a very difficult time persuading a court to use TBOR to change the outcome of a substantive tax provision.  The limiting language of TBOR makes it almost impossible for an argument based on TBOR to go face to face with a substantive provision of law and impact the substantive result stemming from statutory language.  Here, the TBOR argument served essentially as an extension of the equitable argument the taxpayers sought to make regarding the application of the PFIC rules to the facts in their case.  Despite the fact that Congress may not have intended those rules to curb ownership of a family business in a foreign country, the language explicitly taxed the situation in which taxpayers found themselves.  Other situations exist in which TBOR might provide some assistance.  Seeking to use it in a frontal assault on a substantive provision proves once again that TBOR does not exist to serve this purpose.  Put a tick mark on the wall for another court that has reached this conclusion.

Filed Under: TBOR

Review of 2019 (Part 1)

December 26, 2019 by Leave a Comment

In the last two weeks of 2019 we are running material which we have primarily covered during the year but which discusses the important developments during this year.  As we reflect on what has transpired during the year, let’s also think about how we can improve the tax procedure process going forward.  We welcome your comments on the most important developments in 2019 related to tax procedure.

read more...

Important IRS Announcements

CC Notice 2020-002 – Contacting IRS attorney by email

This recently-issued Chief Counsel notice announces a process for email communications between practitioners and Chief Counsel attorneys. Formerly, communication with Chief Counsel attorneys was difficult, due to internal restrictions on emailing taxpayer information. Under the new notice, Chief Counsel employees can now exchange email with taxpayers and practitioners using encrypted email methods. This new policy will likely prove helpful for practitioners, who can now make quicker progress in working with Chief Counsel to resolve Tax Court litigation or to prepare for trial.

CC Notice 2019-006 – Deference

This notice is a policy statement, warning Treasury and the IRS about the current judicial state of play on deference to agency regulations. It states that Chief Counsel attorneys will no longer argue that courts should apply Chevron or Auer deference to sub-regulatory guidance, such as revenue rulings, revenue procedures, or other notices. This guidance should be read in conjunction with the Supreme Court’s decision last term in Kisor v. Wilkie, in which the Court scaled back the applicability of Auer deference and indicated a willingness to rethink the scope of agency deference.  As tax lawyers it’s easy to overlook important administrative law decisions such as Kisor, but we all need to recognize the importance of such decisions on how to practice before the IRS. 

See Keith Fogg, Notices on Communicating with IRS, Chief Counsel’s Office and Deference, Procedurally Taxing (Oct. 28, 2019), https://procedurallytaxing.com/notices-on-communicating-with-irs-chief-counsels-office-and-deference/#comments

Altera, Good Fortune, & Baldwin – Deference to regulations

The 9th Circuit recently reversed the Tax Court’s decision that the transfer pricing regulations at issue in Altera Corp. v. Commissioner, 926 F.3d 1061 (9th Cir. 2019), rev’g 145 T.C. 91 (2015) were invalid because they lacked a “reasonable explanation” as required by the Supreme Court in State Farm.  A majority of the Ninth Circuit concluded that Treasury made “clear enough” its decision by including “citations to legislative history” that the dissent said were “cryptic.” The 9th Circuit recently denied Altera’s petition rehearing en banc over a vigorous dissent from three judges, making the case a possible vehicle for certiorari and the latest Supreme Court reexamining of administrative deference.

In contrast, a decision by the D.C. Circuit in Good Fortune Shipping v. Commissioner, 897 F.3d 256 (D.C. Cir. 2018), rev’g 148 T.C. 262 (2017), held invalid regulations that narrowed an excise tax exemption for corporations owned by shareholders in certain countries.  The regulations said ownership of bearer shares could not be used to qualify for the exemption.  The preamble to the regulations suggested the rule was needed because of the difficulty of reliably tracking the location of the owners of bearer shares, but the court observed that other regulations issued by the agency suggested that the location of the owners of bearer shares were becoming easier to track over time.

On the other hand, in Baldwin v. United States, 921 F.3d 836 (9th Cir. 2019), reh’g denied, 2019 U.S. App. LEXIS 18968 (9th Cir. June 25, 2019), petition for cert. filed, 2019 WL 4673331 (U.S. Sept. 23, 2019) (No. 19-402), the Ninth Circuit held that a claim for refund was late because the common law mailbox rule was supplanted by Treas. Reg. § 301.7502-1(e)(2)(i).  Because the Ninth Circuit had previously held the statutory rule (IRC § 7502) provided a safe-harbor that supplements the common-law rule, the district court held the regulations invalid.  Under the Supreme Court’s holding in Brand X, “[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.”  In this case, the regulations trumped the Ninth Circuit’s prior interpretation of IRC § 7502 because it said its earlier decision was filling a statutory gap.  Litigators have indicated this case may be the perfect vehicle for the Supreme Court to consider overruling Chevron or Brand X. 

See Andrew Velarde, Can the Humble Mailbox Rule Bring Monumental Changes to Chevron? 94 Tax Notes Int’l 412 (Apr. 29, 2019) (noting that Justices Thomas, Gorsuch, Kavanaugh, Alito, Breyer, and Chief Justice John Roberts have arguably expressed reservations about an overly broad reading of Chevron).

Taxpayer First Act (“TFA”)

Innocent Spouse changes/Effect of 6015 (e)(7)

The TFA made perhaps unintentional but significant changes regarding the Tax Court’s review of appeals of adverse innocent spouse determinations.  The change is codified at 6015(e)(7) Such appeals will be reviewed de novo (codifying previous Tax Court precedent). This part of the new law regarding the standard for review is uncontroversial and will not result in changes for those seeking innocent spouse relief; however, the legislation changes the scope of review.  Previously, the innocent spouse proceeding went forward with no restrictions on the information the taxpayer could present in the Tax Court.  Now, the scope of review is limited to the administrative record plus the Tax Court can consider “newly discovered or previously unavailable” evidence. While these provisions may seem innocuous, they also may lead to significant new disadvantages for taxpayers. For one, innocent spouse cases present uniquely burdensome evidentiary issues for taxpayers. Presenting evidence of spousal abuse, for example, may be difficult, especially if police or medical reports do not exist in the administrative record. Meanwhile, the one exception to the administrative record, “newly discovered or previously unavailable” evidence, remains ill-defined in the statute and may prove to be a source of confusion for taxpayers and practitioners. Important evidence that a taxpayer may already possess – thus not making it “newly discovered or previously unavailable” – but didn’t include in the administrative record could potentially be excluded. For pro se taxpayers in particular, who may not be aware of the relevance of certain documents when making their case, this is a particular challenge.

The first few Tax Court cases implicating 6015(e)(7) have begun to emerge and may provide more clarity. One potential judicial solution to the issue would be for the Tax Court to remand cases with under-developed records back to the IRS.

Carlton Smith, Should the Tax Court Allow Remands in Light of the Taxpayer First Act Innocent Spouse Provisions?, Procedurally Taxing (Oct. 17, 2019), https://procedurallytaxing.com/should-the-tax-court-allow-remands-in-light-of-the-taxpayer-first-act-innocent-spouse-provisions/

Keith Fogg, First Tax Court Opinions Mentioning Section 6015(e)(7), Procedurally Taxing (Oct. 16, 2019), https://procedurallytaxing.com/first-tax-court-opinions-mentioning-section-6015e7/

Christine Speidel, Taxpayer First Act Update: Innocent Spouse Tangles Begin, Procedurally Taxing (Oct. 10, 2019), https://procedurallytaxing.com/taxpayer-first-act-update-innocent-spouse-tangles-begin/

Steve Milgrom, Innocent Spouse Relief and the Administrative Record, Procedurally Taxing (July 9, 2019), https://procedurallytaxing.com/innocent-spouse-relief-and-the-administrative-record/

Carlton Smith, Congress Set to Enact Only Now-Unneeded Innocent Spouse Fixes, Part 2, Procedurally Taxing (Apr. 4, 2019), https://procedurallytaxing.com/congress-set-to-enact-only-now-unneeded-innocent-spouse-fixes-part-2/

Carlton Smith, Congress Set to Enact Only Now-Unneeded Innocent Spouse Fixes, Part 1, Procedurally Taxing (Apr. 3, 2019), https://procedurallytaxing.com/congress-set-to-enact-only-now-unneeded-innocent-spouse-fixes-part-1/

Ex parte in TFA and CDP

The TFA does not specifically address ex parte communications between appeals and examinations or collections personnel. However, it does codify appeals’ status as an independent office, which may further strengthen arguments against ex parte communication. The currently applicable ex parte restrictions are found in Rev. Proc. 2012-18, which sets forth extensive guidance on permissible and impermissible forms of ex parte communications.

 In CDP proceedings, ex parte communications can potentially occur between appeals officers and revenue officers via the transmission of the administrative file to Appeals. Rev. Proc. 2012-18 prohibits the inclusion of material that “would be prohibited if . . . communicated to Appeals separate and apart from the administrative file.” But as demonstrated by a recent case, Stewart v. Commissioner, this may be a high bar for taxpayers to clear in challenging such communications. In Stewart, the revenue officer included contemporaneous notes in the file that indicated the taxpayer’s representation was somewhat uncooperative during a field meeting. The Tax Court declined to accept the taxpayer’s argument that the notes were prejudicial and ruled in favor of the Commissioner. 

See Keith Fogg, Application of Ex Parte Provisions in Collection Due Process Hearing, Procedurally Taxing (Sep. 19, 2019), https://procedurallytaxing.com/application-of-ex-parte-provisions-in-collection-due-process-hearing/

Taxpayer protection program

Identify fraud has been a consistent and significant problem for the IRS. But the Service’s new procedures for protecting taxpayer information may be unduly burdensome, particularly for taxpayers who need representation with time-sensitive matters. For those representing taxpayers whose returns are flagged as potential victims of identity theft, the process of authenticating identity is difficult and requires knowledge of taxpayer personal information that may not be readily available, such as place of birth or parent’s middle name. The burden is such that it may even implicate the Taxpayer Bill of Rights (TBOR)’s “right to retain representation”. By de facto requiring that the taxpayer actively participate in the identity verification process, the taxpayer is effectively deprived of their right to have their representative act for them in dealings with the IRS.

See Barbara Heggie, Taxpayer Representation Program Sidesteps Right to Representation, Procedurally Taxing (Oct. 3, 2019), https://procedurallytaxing.com/taxpayer-protection-program-sidesteps-right-to-representation/

VITA referrals to LITCs

Especially relevant for our purposes, the TFA “encourages” VITA programs to advise participating taxpayers about the availability of LITCs and refer them to clinics. This is a helpful step, which strengthens the connection between VITA and LITCs and may help inform eligible taxpayers of the existence of their local LITC.

Filed Under: Auer deference, Chevron Deference, ex parte, TBOR, Timely Mailing
Next Page »