Today we welcome guest blogger Carolyn Lee who practices tax controversy and litigation in the San Francisco offices of Morgan Lewis. Carolyn represents individual and business clients, including pro bono and unrepresented taxpayers while volunteering with the low income tax clinic of the Justice & Diversity Center of The Bar Association of San Francisco. She has taken on the task of trying to reform and improve CDP after our first two decades of experience with this statute and created the CDP Summit Initiative. The CDP Summit Initiative plans to hold sessions at several committee meetings during the upcoming ABA Tax Section meeting in San Francisco on October 4 and 5. It also plans to hold a CDP summit in Washington, D.C. on the morning of December 3. If you have an interest in improving CDP, here’s a chance to get involved. Keith
Few topics engage the tax controversy and litigation community more than the Sections 6320 and 6330 collection due process (CDP) protections as applied. The CDP community is vast – virtually anyone touched by IRS tax collection efforts including taxpayers, practitioners in firm and clinic practice environments, the IRS Collections division, the Office of Chief Counsel, the Tax Court, and the IRS Taxpayer Advocate Service (TAS). We are unified by the fact that everyone has ideas or plans for CDP’s improvement. Note, however, there is no movement to eliminate CDP. CDP indisputably offers valuable protections and procedures to the community.
Instead, there is a new movement to continue fortifying CDP through a newly launched CDP Summit initiative. The Summit objectives are three-fold: CDP education for all stakeholders to increase effective engagement; policy and procedure improvements; and transparency when change is not feasible, with an explanation. Summiteers are shamelessly piling on the years of work by Keith Fogg and Les Book and this Procedurally Taxing (PT) blog, Nina Olson and TAS, the often unheralded efforts by IRS and Office of Chief Counsel professionals, Tax Court directional Orders and Opinions, and observations by private bar practitioners. Summiteers recognize an infrastructure worthy of renovation instead of tear-down treatment. This posting is a call to join the CDP Summit initiative with input and, potentially, time and talent as a member of a Summit Working Group. More information about becoming a Summiteer closes this post.
read more...As commemorated by PT and others throughout last year, CDP is in its third decade. CDP’s implementation, through more than 20 million mailed CDP notices, has revealed its creaky aspects and unintentional, unproductive results in some circumstances. The community has had ample experience to identify opportunities for change, to more effectively and efficiently achieve CDP’s beneficial intent: Fairness when collecting tax due. Orderly procedures that result in progress. Sustainable, humane tax collection approaches to address outstanding tax liabilities.
New slipcovers and updated kitchen appliances have been a recurring feature of CDP’s life. Consider the ever-evolving lien and levy notices, beta tests of helpful outreach to taxpayers after a CDP request is submitted and before the case is referred to a Settlement Officer, and court Orders spurring resourceful efforts to craft sustainable collection alternatives instead of sending the taxpayer back to the street, no further along toward a sustainable collection plan than before filing a Court Petition. Generally unacknowledged is the fact that for years the IRS Collection teams and Chief Counsel attorneys have attended to many suggestions for improvement presented by TAS, PT posters and practitioners underwriting CDP impact litigation – in addition to surfacing opportunities for improvement based on their own experience. The IRM, CDP forms and related communications often change accordingly without fanfare. It is safe to say the point of these government efforts is to improve CDP processes, not torment taxpayers and their representatives. No one believes simply moving a file off a desk without progress, or with a determination that only pushes the (possibly redundant) work to someone else’s desk, is considered a successful or satisfying result by IRS Collections and Chief Counsel professionals.
There still is work to be done to realize CDP’s beneficial intent. The CDP Summit initiative is organized to press forward on an all-together-now basis, in earnest support of CDP. The Summit launched with a program of the ABA Tax Section Individual and Family Tax Committee during the 2019 May Meeting. It continues as an initiative with the active involvement of expert members of every CDP community stakeholder group. The May panelists – the Honorable David Gustafson, Judge, United States Tax Court; Mitch Hyman, Office of Chief Counsel and §§ 6320 and 6330 subject matter specialist; Keith Fogg, who needs no introduction here; Erin Stearns and William Schmidt, both Low Income Tax Clinic Directors; and me for the private tax controversy and litigation bar – are the foundation of the CDP Summit Steering Committee. We are joined by additional representatives from the IRS Office of Chief Counsel, IRS Collections and Collections Appeals, IRS SBSE Counsel responsible for Collections programs, TAS, tax academia and the private bar and tax clinics.
How many CDP opportunities for improvement have already been captured? Almost thirty (30) from every CDP stakeholder constituency. What follows is only a sampling. Many opportunities will look familiar. Here we go: Do more, better, with CDP notices and other communications. (Note that here, the CDP Summiteers plan to join IRS and TAS notice improvement initiatives underway.) Simplify the CDP hearing request process and clarify what, if anything, is jurisdictional about CDP request submission dates. Regarding the CDP request Form 12153, keep the request simple and quick to complete and add tools for the taxpayer to understand and evaluate the value of and eligibility for collection options (link to the financial information Forms 433). For taxpayers ready to act, let them check a box on the Form 12153 seeking expedited attention. Expand the IRS beta program offering helpful support to develop sustainable collection alternatives after the CDP request and before the Appeals hearing. Explore and test the role of the codified Taxpayer Bill of Rights (TBOR) within CDP. Clarify what is a “prior opportunity” to contest a tax liability. What about expanding the use of fee-free Appeals mediation while in a CDP or Tax Court docketed posture? Explore the use of Motions for Summary Judgment given the unforgiving abuse of discretion standard and scope of review, within the context of achieving CDP’s intended results. Are there more options for the Court to address CDP issues presented within the same standard and scope of review constraints? Should all CDP Motions for Summary Judgment be set for trial session hearings, to allow unrepresented taxpayers the opportunity of pro bono counsel and to facilitate settlement? Speaking of remand (an increasingly lively topic of interest), when might an Order of Remand be most productive? More proactively, let’s be in front of understanding the IRS’s planned uses of technology for collection within the context of TBOR.
Opportunities are being classified as Administrative (bifurcated as to point of entry to CDP and Appeals), Judicial and Remedies, with some blurring between the Judicial and Remedies classifications. Change opportunities will be administrative (for example, the IRM), regulatory (including revenue procedures and revenue rulings) and statutory. There may be proposed revised or new Tax Court Rules of Practice and Procedure. The Summit focus will be on feasible administrative and procedural change.
Because the CDP Summit is committed to impact, feasible change with significant effect is our goal. The Steering Community will prioritize opportunities. Working groups across all stakeholders will form around the priorities to explore and recommend change, or understand why change is not feasible (accompanied by possible beneficial alternatives). Education and communications will flow to the practitioner community and taxpayers including, but not limited to several CDP programs during the ABA 2019 Fall Tax Meeting (San Francisco, October 3-5).
Now to the call to action: PT readers and CDP fans, move beyond complaining in the corners and join us. Send us your ideas to improve CDP, within the boundaries of the current §§ 6320 and 6330 statutes. Opportunities within the administration of CDP, judicial engagement, and remedies leading to sustainable collection alternatives are welcome.
Consider whether you would like to be a Summiteer member of a volunteer working group addressing Administrative, Judicial or Remedies opportunities led by a fellow Summiteer. Collaborate with others across the CDP community, including IRS and Chief Counsel subject matter experts. While working group participation will be accompanied by tax geek glamour, it also will require work and time in several forms: Brainstorming, research and analysis, conference call and listserve discussion, requests to publish and present CLE programs about your efforts. We promise you the satisfaction of constructive and productive collaborative effort and outcomes will be immeasurable.
Sections 6320 & 6330 Collection Due Process Protections: Improve CDP, all together now. Call for input and working group participation.
We look forward to hearing from you. If you have a suggestion or want to become a Summiteer member please contact Carolyn Lee at carolyn.lee@morganlewis.com; or William Schmidt at schmidtw@klsinc.org; or Erin Stearns at erin.stearns@du.edu.
Comment Policy: While we all have years of experience as practitioners and attorneys, and while Keith and Les have taught for many years, we think our work is better when we generate input from others. That is one of the reasons we solicit guest posts (and also because of the time it takes to write what we think are high quality posts). Involvement from others makes our site better. That is why we have kept our site open to comments.
If you want to make a public comment, you must identify yourself (using your first and last name) and register by including your email. If you do not, we will remove your comment. In a comment, if you disagree with or intend to criticize someone (such as the poster, another commenter, a party or counsel in a case), you must do so in a respectful manner. We reserve the right to delete comments. If your comment is obnoxious, mean-spirited or violates our sense of decency we will remove the comment. While you have the right to say what you want, you do not have the right to say what you want on our blog.