Quick Follow Ups on Vigon v. Commissioner and Private Debt Collection

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I recently wrote about an order in the case of Vigon v. Commissioner in which Judge Gustafson provided instruction to respondent’s counsel because of a failure to lay the proper foundation for a the summary judgment motion.  IRS Counsel took the instruction to heart quickly and requested a continuance for a trial scheduled for February 22, 2017.  The IRS now agrees that petitioner is not liable for the penalties at issue in the case and stated in its motion that it was in the process of abating the penalties.  The IRS further stated that it was in the process of releasing the liens.  This is a great result for a pro se taxpayer who did not initiate the arguments resulting in these concessions.  The Court granted the continuance but had a question for the IRS:

“We understand how collection issues under section 6330(c)(2)(A) become moot if collection activity ceases. It is less clear how a liability challenge under section 6330(c)(2)(B) becomes moot merely upon an announced concession, which would not seem to have any res judicata or collateral estoppel effect. Perhaps a CDP petitioner who makes a liability challenge that the IRS concedes is entitled to decision in his favor on the liability issues.”

So, the Court ordered the IRS to make an appropriate filing by March 24, 2017, and to explain in the filing how it provide adequate relief to the petitioner on the merits side of this case.

Private Debt Collection

I also recently wrote about private debt collection and wanted to provide a quick update.

The IRS recently released sample CP40 notice letter.  The letter alerts the taxpayer that their account has been assigned to a PDC.  The hope is that the letter will prepare the taxpayer for the call(s) from the PDC and keep the taxpayer from having concerns that the PDC is a scam artist.




  1. Do I detect a note of sarcasm when Judge Gustafson writes in the latest order, “We commend respondent’s counsel for prompt and efficient work on this case” ?

    From what I see from the online docket, after the Judge’s excoriating order of December 23, 2016, the IRS (1) Filed a status report on January 5; (2) filed another status report on January 18; and (3) filed a pre-trial memorandum on February 8. It was not until February 16 that the motion for continuance was filed for the February 22 trial. (In that motion, IRS conceded.)

    How many times did the buck have to be passed in Counsel’s offices, during the nearly eight weeks before the Court was told to forget about it?

    As for the most recent order, I don’t think Mr. Vigon has to worry about res judicata and collateral estoppel once the IRS has abated the penalties that it perhaps frivolously asserted. Judge Gustafson, though, may have justifiable concerns about what he states in his order of dismissal, as to what precedent it establishes in the next such situation. Not that Tax Court orders can be cited as precedent.

    Or can they? If Judge Gustafson is worried about it, does that add weight to Carl Smith’s post here (November 4, 2015): “What about citing unpublished orders in unrelated cases to the Tax Court? Is that also now OK? Well, I think so, but the government, at present, is of two minds on the subject, since the government is currently citing unpublished orders in unrelated Tax Court cases to the Tax Court in a pending Tax Court case while the DOJ is currently opposing my attempt to do the same in a pending Ninth Circuit case.”

    • Bob,

      I think what is written in unpublished orders gets Skidmore v. Swift deference. The problem is that what other judges get to see before issuance from the Tax Court is only opinions, not orders. So, unless someone makes an unpublished order known to the public and the other judges, it basically is a tree falling in the forest with no one to hear. I am delighted that PT and other blogs are now pointing out the more interesting orders. It is my understanding that some Tax Court judges read PT and maybe other blogs, so the blogs can be a help in making other judges think. But, in this case, my hope is that Judge Gustafson resolves this case with a published opinion. After all, the recent Dees case where the notice of deficiency asserted $0.00 was also one where the IRS was willing to concede, but the judge involved wrote an opinion on the court’s jurisdiction that ended up going to full court review.

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