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

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.

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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.

Technology and Taxpayer Rights

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.

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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.”

A Motivating Reminder

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.

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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.

Court of Federal Claims Rejects Taxpayer Bill of Rights Argument

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.

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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.

Review of 2019 (Part 1)

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.

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Important IRS Announcements

CC Notice 2020-002Contacting 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 2019-006Deference

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.

Taxpayer Protection Program Sidesteps Right to Representation

We welcome guest blogger Barbara Heggie. Barb is the Coordinator and Staff Attorney for the Low-Income Taxpayer Project of the New Hampshire Pro Bono Referral System. In the most recent Annual Report to Congress, the National Taxpayer Advocate identified the high false positive rate associated with the IRS’s fraud detection systems as the fifth most serious problem affecting taxpayers. The IRS took steps to improve its refund fraud program for the 2019 filing season; the results were not fully in at the time of the National Taxpayer Advocate’s 2020 Objectives Report. In today’s post, Barb walks us through a recent false positive case from her clinic. She identifies IRS procedures that pose a high barrier to successfully passing through the verification process, particularly for taxpayers who need assistance from a representative. Barb suggests the IRS ought to make changes to comport with a taxpayer’s right to representation. Christin

I had my first encounter with the IRS’s Integrity & Verification Operations (IVO) function last month. It did not go well.

I had prepared a 2017 return a few weeks earlier for a disabled, fifty-something client in recovery from substance abuse, and he’d been anticipating receipt of a small overpayment. His main source of income that year had been Social Security, but he’d also had a few hundred dollars in wages. His payroll withholding, plus a bit of the Earned Income Credit, had added up to an early fall heating bill here in New Hampshire.

Instead of a refund notice, we each received a copy of a Letter 4883C from the IVO Taxpayer Protection Program; his return had been flagged, and he needed to verify his identity. Given this client’s severe anxiety concerning the IRS, I studied the letter and prepared to make the call alone. I anticipated no issues; I had all the documentation the letter required, including the flagged return, the prior year’s return, and all supporting forms and schedules for each.

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Once on the line with IVO, however, things quickly got strange. Following the preliminary, “normal” authentication, the customer service representative (CSR) asked me to answer these questions three: “What is your client’s place of birth? What is his mother’s maiden name? And what is his father’s middle name?” I had none of this information and have never asked such things of my clients, save for the place of birth for an ITIN application. I don’t collect birth certificates as a matter of course.

Interestingly, Letter 4883C did warn of “questions to verify your identity” – but then listed the documents to have on hand. Hence, I believed those documents would be the basis for the verification questions. The letter “encourage[s]” the client “to be available . . . on the call” with an authorized representative, but it fails to explain why that might, in fact, be essential.

Had I studied more than the 4883C letter, I would have realized that the call would involve “high risk authentication procedures,” necessitating “Additional Taxpayer Authentication.” IRM 21.1.3.2.3(2); 21.1.3.2.4(2); 25.25.6.4. Once in the land of Additional Taxpayer Authentication, the caller is subject to the TPP HRA IAT disclosure tool; that is, the Taxpayer Protection Program High Risk Authentication Integrated Automation Technologies Disclosure tool. IRM 25.25.6.4(2). This tool, in turn, generates a series of authentication questions for the taxpayer, the answers to which cannot easily be guessed by anyone else, including the taxpayer’s authorized representative. Tantalizingly, the IRM provides a long list of possible questions to ask in the ITIN identity theft context – possibly the same as those asked of SSN holders – but they’re all masked against public consumption. IRM 25.25.6.4(8).

Thus, if I had thought to read the IRM before placing the verification call, I wouldn’t have had a clue what questions might be asked. But I would have realized the futility of making the call without my client on the line.

And, so, I flunked the call. When I explained my client’s situation and offered to call right back with the answers, the CSR informed me that I had already used up my “one chance” to resolve the issue “the easy way.” The two hard ways were: (1) attending an in-person meeting with the client at a Taxpayer Assistance Center (TAC), or (2) verifying his identity by mail. Both methods required the authentication documentation originally requested, as well as two forms of identification. The CSR stated that he was making the mail-in option available to my client only because of his severe anxiety.

My client did, eventually, verify his identity at a TAC with the help of a volunteer attorney who was kindly working with him to reduce his anxiety about the IRS. Fortunately, both the client and the volunteer had only a few minutes’ drive to reach the TAC. But conversations with practitioners on the ABA Low-Income Taxpayer Clinic (LITC) listserv reminded me that this is often not the case. To receive a legitimately-claimed refund – already months late – a rural client may need to jump through ever-more burdensome hoops, such as an unpaid day off from work and an expensive tank of gas.

Clients lacking English fluency doubtless find further barriers standing in their way in such a system. One LITC colleague recalled an incident with IVO in which she and her low-English client participated in the call together via speaker phone, yet the CSR forbade this attorney from speaking for her client. Other LITC staff have recounted similar experiences. All such scenarios seem contrary to the authentication provisions of IRM 25.25.6.3.1(3)(1), which explicitly states that “the POA is authorized to act on behalf of the taxpayer.”

My client’s identity verification scenario was arguably less egregious than these. Moreover, in the context of the enormously costly, vastly complex problem of identity theft, overbroad rule-writing is understandable, if not optimal. Getting it right is as difficult as it is critical. And yet, as retired National Taxpayer Advocate Nina Olson wrote in her June 20, 2019, NTA blog post, “the soundness and effectiveness of any tax administration is measured by the trust its taxpayers have that they will be treated fairly and justly.” Overbroad IRM provisions can lead to an erosion of this trust in the system – a system which relies primarily on voluntary compliance.

More particularly, the procedures that led to my authentication difficulty violate the client’s right to retain representation. The right to retain representation implies, of course, the right to have a representative speak and act for the taxpayer. Any limitation on this right should come with justification, such as the need for a taxpayer to sign certain documents under penalties of perjury. Even then, the taxpayer holds the right to authorize a representative in certain exigent circumstances. See 26 CFR 1.6012-1(a)(5).

In the case of an IVO identity verification, IRM 25.25.6.3.1(3)(1) has the practical effect of limiting the representative’s authority, but without justification. This provision directs the CSR to “follow all instructions in the IRM as if the POA is the taxpayer.” (Emphasis added.) However, because the POA is not, in fact, the taxpayer, the POA cannot answer questions specifically designed to be answerable solely by the taxpayer. Thus, this IRM provision deprives the taxpayer of the chance to have a representative resolve the identity verification issue. Given the misleading nature of Letter 4883C, a taxpayer and representative may lose their “one chance” to make a speedy verification over the telephone and instead be forced to do so in person at an IRS office.

Security concerns provide no justification for this provision. A high level of security can be maintained by asking the representative to answer such questions as only the representative can answer. After all, the only two people addressed in a Letter 4883C are the taxpayer and the representative. And, presumably, if the IRS knows your client’s place of birth, mother’s maiden name, and father’s middle name, the IRS has the same information on you. As Sir Galahad discovered – alas, too late – the only correct answers to personal questions are your own personal answers.

The right to retain representation is part of the Taxpayer Bill of Rights (TBOR), found in IRC §7803(a)(3) and IRS Publication 1. As last year’s Facebook case emphasized, however, Section 7803(a)(3) specifies that various “other provisions” of the Code afford these rights. Thus, the Facebook court concluded, “no right was a new right created by the TBOR itself.” Rather, TBOR is more concerned with training and management of IRS employees, according to the United States District Court, N.D. California, San Francisco Division. Keith Fogg takes the discussion a few steps further in his forthcoming Temple Law Review article:

Perhaps more important than litigation is the role TBOR can play in shaping policy decisions at the IRS. It could play a major role in the regulations issued and in the sub-regulatory guidance that governs everyday life at the IRS. . . TBOR also has a role to play in internal discussions at the IRS which shape so much of the administrative process. If TBOR can alter the culture at the IRS to incorporate taxpayer rights as a major component of each policy decision, it will become an important part of tax administration whether or not it becomes an important part of litigation.

Several discussions on this topic can be found in Procedurally Taxing here, here, and here.

It may be that a bit of policy-shaping and culture-altering may come of the authentication tribulation my client and I experienced. I submitted a request on the representation issue in the Systemic Advocacy Management System (SAMS), #41352, and got a sympathetic reply from the analyst assigned to it. After a couple of weeks, she reported back that the issue had been elevated to the Revenue Protection Team, with the goal of finding ways “to make the system move more smoothly.” Moreover, she said, the issue would be added to the CSRs’ training package. With luck, all changes will be made with an eye to TBOR.

Taxpayer Bill of Rights Does not Confer Tax Court with Jurisdiction in Collection Due Process

In the case of Atlantic Pacific Management Group LLC v. Commissioner, 152 T.C. No. 17 (June 20, 2019) the Tax Court in a precedential opinion determines, inter alia, that the Taxpayer Bill of Rights (TBOR) does not provide a basis for jurisdiction for a taxpayer to come into the court seeking Collection Due Process (CDP) relief. The case involves more than just the TBOR argument, but I think the TBOR aspect of the case may have driven the case to precedential status. The case is one of several in which Frank Agostino has raised TBOR as a basis for relief. I discuss this case and the others in an article on TBOR forthcoming in the Temple Law Review.

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The IRS assessed penalties against the taxpayer under IRC 6698(a) for late partnership information returns and IRC 6038(b) for failing to file information returns with respect to foreign corporations and partnerships. After sending the requisite notice demanding payment and not receiving payment, the IRS eventually filed a notice of federal tax lien and sent a CDP notice to petitioner at its New York address. The court finds that the CDP notice was sent on June 13, 2017, delivered and signed for on June 16, 2017. In a footnote it notes that petitioner disputes delivery and further notes that this fact does not matter. Petitioner’s tax matters partner was not in the United States at the time of delivery and did not sign for the delivery. Petitioner requested a CDP hearing on July 28, 2017 more than 30 days after the mailing of the CDP notice. The address used by petitioner in requesting the CDP hearing matched the address to which the IRS sent the CDP notice.

The IRS responded to the CDP request by notifying petitioner that its request failed to meet the timeliness requirements for a CDP hearing. The IRS offered petitioner an equivalent hearing if it requested one by September 1, 2017. It did this in a letter dated August 28, 2017. Petitioner did not reply to this letter by September 1 and one wonders how it could do so within such a short time frame. This puzzles me as I thought the untimely CDP request submitted within one year of the CDP notice would automatically trigger an equivalent hearing but apparently the taxpayer must make a second request affirming the desire for an equivalent hearing. The IRS automated collection site closed the case without offering an equivalent hearing on September 7, 2017. Because the Tax Court does not have jurisdiction over equivalent hearings, it does not provide a further discussion of this troubling truncation of the equivalent hearing.

Petitioner sent another request for a CDP or equivalent hearing on December 19, 2017, but the court noted that the record contained no indication of a response to this letter from the IRS. Apparently having heard nothing since sending the December letter, petitioner filed its petition on May 2, 2018, requesting review of its case even though it did not have a determination or a decision letter. Petitioner attached to its petition the letter from the IRS dated August 28, 2017.

The Tax Court started its discussion with a general statement of the prerequisite for obtaining jurisdiction to obtain a collection due process review:

Our jurisdiction under section 6330(d)(1) requires a written notice embodying a determination to proceed with the collection of taxes in issue, and a timely petition. Lunsford v. Commissioner, 117 T.C. 159, 164 (2001). The determination does not have to follow any particular format. LG Kendrick, LLC v. Commissioner, 146 T.C. 17, 28 (2016), aff’d, 684 F. App’x 744 (10th Cir. 2017). However, if no written determination is issued, the absence of such a determination is grounds for dismissal of the petition. Id. (citing Offiler v. Commissioner, 114 T.C. 492, 498 (2000)). In deciding whether we have jurisdiction we will not look behind a notice of determination, or lack of notice, to determine whether a hearing was fair or even whether the taxpayer was given an appropriate hearing opportunity. Id. at 31; cf. Lunsford v. Commissioner, 117 T.C. at 164-165.

Since the court decided off the bat it lacked jurisdiction, it next looked to explain why it had no jurisdiction to hear the case. It basically discussed two cases in which it noted the difficulty to reconcile the outcomes in the Tax Court. First, it discussed Buffano v. Commissioner, T.C. Memo. 2007-32. In Buffano, the Tax Court determined that the IRS sent the CDP notice to the wrong address. Because of the error in mailing the CDP notice, the Tax Court invalidated the levy notice as it dismissed the case. Petitioner argued that the court should issue a similar order here. Second, the court discussed Adolphson v. Commissioner, 842 F.3d 478, 484 (7th Cir. 2016) where the Seventh Circuit, in a case with similar facts to Buffano held that “[a] decision invalidating administrative action for not following statutory procedures is a quintessential merits analysis, not a jurisdictional ruling.” The IRS asked the Tax Court to adopt the holding in Adolphson and decline to rule on the administrative action as it dismissed the case. The court declined both invitations and distinguished this case from Buffano because it found that the IRS in this case mailed the CDP notice to the correct last known address.

Since the CDP notice went to petitioner’s last known address and since petitioner failed to make a timely CDP request, the court held that the IRS did not need to issue a notice of determination. Without the notice of determination, the court lacked jurisdiction over petitioner’s collection complaints.

Petitioner did not stop at this point but argued in the alternative that IRC 7803, home to TBOR, offered another path by which the court could obtain jurisdiction. The court declined the invitation to find jurisdiction through TBOR stating:

… section 7803(a)(3) itself does not confer any new rights on taxpayers; it merely lists “taxpayer rights as afforded by other provisions of” the Code. Further, section 7803(a)(3) imposes an obligation on the Commissioner to “ensure that employees of the Internal Revenue Service are familiar with and act in accord with” such rights. It does not independently establish a basis for jurisdiction in this Court.

In a footnote the court cites to the case of Moya v. Commissioner, 152 T.C. __, __ (slip op. at 16-17) (Apr. 17, 2019), where the court held, in the context of a deficiency case, that TBOR provided no new rights and no independent rights on which the taxpayer could rely. We discussed the Moya case here.

The court concludes by noting, as it frequently does, that petitioner still has the remedy of paying the tax and filing a refund claim. No facts were offered on the practicality of this remedy for this taxpayer. I know for the taxpayers I represent, this is not a practical remedy.

The decision here does not come as a surprise to me. Had the court ruled that it had jurisdiction based on TBOR I would have been shocked. The refusal to use TBOR as a basis for jurisdiction does not mean that a violation of taxpayer rights could never play a role in the outcome of a CDP case in Tax Court but conclusively provides, at least at the Tax Court, that TBOR will not open the door of the Tax Court no matter how egregious the violation of taxpayer rights and that the taxpayer must find some other means to obtain jurisdiction.

Here, the taxpayer did not argue that the 30 day period for making a CDP request is not a jurisdictional time period and that its failure to meet the 30 day period resulted from some factor(s) that could form the basis for equitable tolling. The facts do not necessarily support such an argument, but the taxpayer did make some arguments about the absence of the principal of the business at the time of the delivery of the CDP notice. Judge Gustafson recently issued an interesting order raising questions regarding the jurisdiction of the Tax Court based on a failure of the “right” part of the IRS to receive the CDP notice within 30 days. If TBOR does not open the court’s door in the situation presented by Atlantic Management, be sure to look at whether a CDP request submitted to the IRS after the 30 day period might warrant a different type of argument regarding jurisdiction that does not rely on TBOR.

TBOR Provides no Relief in Tax Court Deficiency Proceeding

In Moya v. Commissioner, 152 T.C. No. 11 (2019) the Tax Court rejected petitioner’s argument that she could obtain relief in a deficiency case based on her assertion that the IRS had violated her TBOR rights. The precedential opinion cites to Facebook v. IRS (blogged by Les here) and picks up where the Facebook opinion left off in finding that TBOR creates no rights that did not already exist. Because Ms. Moya relied exclusively on TBOR in seeking relief and made no assignment of error regarding the substance of the adjustment in the notice of deficiency, she loses the case entirely with the exception of some concessions by the IRS.

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Ms. Moya is a college professor. She was teaching in Las Vegas at the time the examination began. During the examination she moved to Santa Cruz, California and requested that the IRS reassign her case to an examiner in her new location. She wrote to the examiner in Las Vegas to make this request. She received no response. She called with the same result. She wrote again and received correspondence from the IRS office in Denver indicating that her case would be moved to a location near her; however, the office in Las Vegas subsequently issued a notice of deficiency without ever meeting with her. She considered this a violation of her rights to have her questions answered and the right to meet with an IRS representative at a time and place convenient to her.

The notice of deficiency reduced Schedule C expenses that Ms. Moya had claimed for each of the three years under examination. In her Tax Court petition she chose not to challenge the disallowance of the expenses or the related penalties, but simply relied on the alleged violation of TBOR as the basis upon which the court could grant relief. This decision made the court’s job easier since it merely had to focus on the TBOR arguments. The decision also serves as a reminder that petitioners in Tax Court need to put at issue in the petition (or amended petition) everything they may wish to argue in the case.

By not assigning any error to the adjustments to her returns, Ms. Moya conceded those adjustments according to the Tax Court Rules 34(b)(4) and 41(b)(1) as well as a significant amount of case precedent.

In response to Ms. Moya’s TBOR argument, the IRS essentially argued that she could not make the TBOR argument in Tax Court because the proceeding is de novo. It cited to the case of Greenberg’s Express v. Commissioner, 62 T.C. 324 (1974) in support of its position. For anyone not familiar with Greenberg’s Express, it holds that the Tax Court will not look behind the notice of deficiency. It usually comes up in cases in which the taxpayer wishes to complain about the revenue agent or the audit process and is basically a statement by the court that it will not listen to those types of arguments in a deficiency case. The taxpayer must “get over” their concerns about the way the audit was conducted and instead address the merits of the audit determination. IRS attorneys regularly cite to Greenberg’s Express, because taxpayer complaints about the audit process arise frequently in Tax Court cases. Each Tax Court judge has a canned speech for taxpayers about this issue. The point of the IRS argument regarding Greenberg’s Express was that Ms. Moya essentially made a typical argument addressed by that case, just dressed up in different clothing.

Ms. Moya countered that her argument did not simply complain about the audit, but that TBOR elevated her concerns about the audit to something actionable in the Tax Court case. She sought to find rights created by TBOR that did not previously exist.

The Tax Court finds that “the history of the IRS TBOR makes clear that it accords taxpayers no rights they did not already possess.”  The court traces the statements of the Commissioner, the NTA and the legislative history.  The court cites favorably to the Facebook decision.  It concludes that:

We think there is ample evidence in the history recited to conclude that, in adopting a TBOR in 2014, the Commissioner had no more in mind that consolidating and articulating in 10 easily understood expressions rights enjoyed by taxpayers and found in the Internal Revenue Code and in other IRS guidance.  Certainly, the Commissioner had no power to legislate any new rights.

The court focuses on the Commissioner’s administrative adoption and not on the Congressional enactment of TBOR in 2015. An argument exists that making it law added something to TBOR. The court does not address any possible additional authority that occurs as a result of the passage of the law but nothing in the statute explicitly gives rights to the taxpayer not contained in the administrative provisions of TBOR. 

After the court rejects Ms. Moya’s TBOR arguments, it engages in an analysis that the court occasionally does when someone alleges bad or wrongful actions by the IRS during the examination process to determine if the IRS actions here violated norms to such an extent that the court would take action despite Greenberg’s Express. The court determines that the alleged violations here did not reach the level that would allow Ms. Moya to go behind the notice of deficiency. To go behind the notice and overcome the precedent in Greenberg’s Express would have required a very high level of IRS misconduct during the audit. Such cases are extremely rare.

The result here does not surprise me.  Taxpayers cannot point to anything in TBOR that gives them additional rights. Without something tangible, this case does seem like an attempt to go behind the notice of deficiency, simply using different dressing to make the argument. However, the decision here does not apply to non-deficiency cases. Although the outcome in a Collection Due Process or Innocent Spouse case might ultimately mirror the outcome here, those statutes have roots in equity where the pre-court process might create a better atmosphere for a TBOR argument. Several cases currently exist in the Tax Court in which taxpayers have made TBOR arguments in non-deficiency cases. We may not have to wait long to find out if TBOR has any legs in these types of cases.