In my last two posts (see here and here) I have tried to put into perspective how a taxpayer is and isn’t constrained by the Tax Court’s lack of “refund” jurisdiction in CDP cases. In my posts I have tried to explain that the Tax Court may (1) functionally determine an “overpayment,” so long as it pertains to the propriety of a collection action, and (2) order the IRS to return money to the petitioner, so long as it is not a “rebate” refund (i.e. money representing an overpayment).
In this post I want to expand on the ability to get a refund in CDP a bit more, with a focus on how even if what you’re really after is the determination of an overpayment with a (rebate) refund, CDP may still be of use. To get there, we need to think a bit more holistically about how the CDP process really works, rather than just focusing on the (occasional) end-product of a Tax Court order.
read more…So you think the IRS should give you money and you have the opportunity for a CDP hearing… Returning to my wrongful state tax levy example may help illustrate the problems with throwing up one’s hands and cursing Greene-Thapedi for CDP’s futility.
As a refresher, in my earlier post I stated that if I had a case where the IRS took a state tax refund without giving the (legally required) prior notice, I would demand that money back in a CDP hearing. In the comments, Carl noted that every court thus far has found that the Tax Court does not have refund jurisdiction. Carl also compared the statutory language of Tax Court CDP jurisdiction (IRC § 6330(e)(1)) with that of the Tax Court’s refund jurisdiction in deficiency cases (IRC § 6213(a)). On his reading (and having no small amount of knowledge on the area of all things jurisdictional), Carl speculated that the Tax Court also likely wouldn’t find it had the injunctive grant of power to return the improperly levied state refund.
Perhaps.
In my prior two posts I think I’ve explained why I don’t think that’s the case. But let’s leave that alone for now. Instead, let’s focus on everything that would happen before actually getting to the Tax Court.
How CDP Cases Actually Play Out – Multiple Chances for Remedy
If the facts are abundantly clear that the IRS did not send the proper, legally required notice prior to levying on my state tax refund, it is possible that the CDP hearing will end without ever needing Tax Court involvement. Perhaps you get a reasonable Settlement Officer who takes seriously their statutory obligation to investigate that “the requirements of any applicable law or administrative procedure have been met.” IRC § 6330(c)(1). Clearly, they were not followed in my hypo.
Admittedly, it is an open question of whether the IRS should necessarily have to give back the state tax refund just because the applicable rules were not followed. Perhaps the IRS could make some sort of harmless error argument, if I really don’t have a good alternative to levy. But it is also pretty easy to come up with facts where the IRS’s own policies would suggest that they shouldn’t have levied -for example, if the levy would cause (or exacerbated) economic hardship.
Importantly, it is also clear that the IRS “can” give a state refund back to the taxpayer. The IRM suggests that there are a number of situations where it may be appropriate to return a state tax refund levy (see IRM 5.19.9.3.7). The IRM also suggests returning the refund if there was a finding of economic hardship. See IRM 5.1.9.3.5.1(8).
So with the right facts and a reasonable Settlement Officer the IRS just might agree to give you back the improperly levied proceeds in their (favorable) determination letter. Obviously, being provided the relief you sought, you would petition the Tax Court thereafter, and no Tax Court involvement would ever take place.
The system (in this case, buoyed by a truly “Independent Office of Appeals”) works!
Indeed, this is precisely what I suggested in my post on the CP504 Notice, where I mentioned the value of CDP while also (in the same sentence) mentioning the limitations on refund jurisdiction in Tax Court. Simply put, you can get a refund in an administrative CDP hearing that you may never get “ordered” in CDP litigation.
But what if the Settlement Officer issues an unfavorable notice of determination? Good news: you still don’t (yet) need the Tax Court to order a refund. You just need reasonable IRS Counsel after your petition.
Believe it or not, even huge bureaucracies like the IRS are ultimately made up of people -most of whom want to do the right thing. I’ve had multiple petitions on CDP determinations where there is a plain error made by IRS Appeals. On the egregious cases I’ve had, when IRS Counsel gets the petition they ask me, “what can we do to fix it?” Sometimes IRS proposes a fix that the Tax Court would not be able to order on its own. As an example, I had a CDP case where IRS Counsel proposed removing penalties as a fix, even though (in our posture) there was no possible way of the Tax Court providing that remedy.
Of course, the obvious next question is “but what if IRS Counsel doesn’t agree with you?” Well, then you just may get to a Tax Court order. But even still, I think the Tax Court can play an important role without directly ordering a refund.
Doing the Right Thing, With the Right Motivation
Back to the Schwartz opinion from my first post…
In Schwartz the Tax Court found that the petitioner didn’t owe for two years (2006 and 2007) but did owe for others. Accordingly, the conclusion of the opinion states that the Tax Court does “not sustain the proposed levy for those years.” What are the consequences of this opinion?
I suppose you could read it extremely narrowly: the IRS cannot levy for 2006 and 2007. That’s it.
Or you could read it more accurately: the IRS cannot levy and should adjust their accounts to show no balance due for those years.
There is a subtle difference between the two.
Theoretically, if the order didn’t require the IRS to adjust the account balance but only said “the IRS cannot levy” for 2006 and 2007 the IRS could still maintain that there is a balance due, and even offset against it, effectively collecting while not running afoul of the Tax Court order. This would read an opinion (and order) as only pertaining to the propriety of a levy, and not addressing the underlying rationale.
But it is unthinkable to me that the IRS would fail to adjust the accounts, not least of all because the opinion makes explicit that the Tax Court has found no balance due. So it shouldn’t really matter if the ensuing order tacks that on… but therein lies the rub.
As I said before, Tax Court opinions matter. And this is why remands aren’t a useless remedy. I ended my first post with the hypo where the Tax Court finds that the IRS erred in failing to credit the taxpayer’s account with $5,000 on a $3,000 liability. Conceptually, not that different from Schwartz or even the issue in Melasky… albeit in my hypo, the Tax Court has a favorable finding for the taxpayer.
What happens next?
The Tax Court opinion finds that the IRS erred in failing to credit money to the taxpayer’s account. But the Tax Court order only remands the case to IRS Appeals to address this error in a supplemental hearing: it does not “order” a refund.
The opinion, frankly, should be enough to get you where you want to go. When the Tax Court kicks the case back to Appeals, the IRS should get the (literal and figurative) memo. It will either make the adjustments required of the opinion’s reasoning or be stuck in a doom-loop of remands for errors of law in its supplemental determinations.
In my experience, this is actually a pretty non-controversial understanding of how the Tax Court works in CDP, even on “vanilla” collection issues. The Tax Court almost never “orders” specific relief (e.g. “the IRS must accept this Offer,”), but rather remands solely on abuse of discretion (e.g. “the IRS abused its discretion in rejecting this Offer,”). Where taxpayers ask for more, they usually don’t get it, even when they clearly win on abuse of discretion. See, for example, Antioco v. Commissioner, T.C. Memo. 2013-35 (Judge Holmes finding abuse of discretion, but not ordering the IRS to enter into an installment agreement).
Conclusion: Maybe You Don’t Need an Order of Refund, or Even Refund “Jurisdiction”
The IRS’s mission isn’t to cling tightly to as much money as it can that comes through its doors. And the IRS attorneys I’ve worked with likewise don’t tend to see this as their job. I am confident that if I had a court opinion saying “IRS you were wrong to take this money,” the IRS wouldn’t say “But we’re keeping it until you can find a judge to specifically order us to give it back.”
It is, perhaps, a hassle that the Tax Court can’t or won’t act as a one-stop shop to order these refunds, and that a particularly recalcitrant IRS employee could force the taxpayer to seek redress in federal district court. But I don’t think this is what happens in most instances.
At the administrative level, the IRS can surely make the changes to its accounts “behind the scenes” in CDP, and without the Tax Court expressly ordering them to do so. I expect that’s how most CDP cases resolve.
But even at the Tax Court level, it is important to recognize that the parties can enter decisions that provide more detail and more protection than just “the Notice of Determination is (or is not) sustained” without running into jurisdictional traps. Indeed, going beyond the limited jurisdictional issues before the Tax Court judge is what negotiating “below the signature” stipulations is all about (PT posted a helpful IRS guide on that issue here).
And while it might not be a Tax Court “order,” having stipulations dealing with the future actions of the parties (e.g. “the IRS will credit Petitioner’s account with $x”) is not too shabby.
About Caleb Smith
‘Theoretically, if the order didn’t require the IRS to adjust the account balance but only said “the IRS cannot levy” for 2006 and 2007 the IRS could still maintain that there is a balance due, and even offset against it, effectively collecting while not running afoul of the Tax Court order. This would read an opinion (and order) as only pertaining to the propriety of a levy, and not addressing the underlying rationale.’
It probably isn’t theoretical. Tax Court ordered that the IRS can’t collect from me for 2002 by levy, but lacked jurisdiction over my wife because my wife is still waiting for a Notice of Determination. More than a year later, the IRS partially collected from us jointly by offset. The IRS, DOJ, and courts have made it pretty clear that I’m the one who they penalize for excessive honesty, so I’m probably the one the IRS targeted with the offset. Also I’m the one who paid the withholding that was taken by the offset.
(Greene-Thapedi prevented that judge from observing that overpayments in other years were more than enough, but that doesn’t matter to this particular case. The IRS didn’t make an assessment against me, though we can’t find out if the IRS made an assessment against my wife to penalize my excessive honesty.)
‘The IRS’s mission isn’t to cling tightly to as much money as it can that comes through its doors. And the IRS attorneys I’ve worked with likewise don’t tend to see this as their job.’
That’s because you’re not pro se.
Caleb-
Thanks for this set of posts. It is important to note that Zapara was affirmed by the 9th Circuit in a published opinion. Zapara v. Comm’r, 652 F.3d 1042 (9th Cir. 2011). The exact language and reasoning of the 9th Circuit’s opinion is important – I’m not going to get into that here. Interested practitioners and taxpayers should read it carefully. That opinion may or may not help you or your client if you are in the 9th Circuit, depending on the facts of your case.
I will use this comment as an excuse to once again rail against the majority opinion in Greene-Thapedi. The majority dismissed the case based on (alleged) mootness. The majority got it wrong. The entire case was not moot, only the collection side of the case was moot. The “liability determination” side of the case was definitely not moot. Because the Court clearly had jurisdiction over the “liability determination” side of the case as of the date of the petition, to me it defies comprehension that the Court described the entire case as becoming moot once the liability was paid in full.
Getting Greene Thapedi reversed by a Court of Appeals will take a minor miracle. The fact pattern in that case is not that common in my experience. And it is a fact pattern that is unlikely to be repeated where the taxpayer is represented by competent counsel who wants to litigation in Tax Court. Most importantly, the client must be willing to endure a trip to the Court of Appeals to even have a chance of litigating the case in Tax Court. Only if they win the appeal do they get their day on the merits in Tax Court. Most clients will decline that opportunity if there is another way to solve the problem or if it does not make sense economically to pursue the appeal. [I will gladly lend a hand pro bono in an appropriate case where a reversal of Greene Thapedi is a realistic possibility.]
Diligent practitioners who represent taxpayers who can properly raise the merits of a liability in a CDP [notwithstanding the judicial interpretation of 6330 (c)(2)(B)] and who prefer to litigate the merits in Tax Court instead of District Court must be diligent about avoiding “mootness” as the result of full payment through refund offsets, etc. Tax Court is often the preferred litigation venue, sometimes because Tax Court is often far less expensive to litigate in than District Court and/or because the settlement process in cases involving DOJ Tax is often far more cumbersome and time-consuming than the settlement process with IRS Chief Counsel’s office.