TBOR Provides no Relief in Tax Court Deficiency Proceeding

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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.


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.


  1. Norman Diamond says

    If George Orwell’s legacy had not been incorporated into the TBOR, perhaps taxpayers would have gained a right to pay the correct amount of tax.

    Does high level misconduct by the IRS include refusal to audit when a taxpayer most certainly deserves to be audited? The TBOR doesn’t give a court jurisdiction to review what the IRS did with the overpayment.

  2. Anthony M says

    The goal of consolidating taxpayers’ rights and making them easily understood is undermined if it’s not also easily understood what you can do to get each right enforced. The Notice of Deficiency directs taxpayers to Publication 1 (TBOR) and also details tax court proceedings as “what to do if you disagree”, with the alternative being a generic suggestion to contact the IRS, so it is not surprising that this error would happen.

    Also, in this case, it sounds like there was a NOD but no prior letter with proposed changes–is that true? If so, what was this taxpayer’s opportunity to raise TBOR issues?

    • Norman Diamond says

      It’s not easily understood that recipients of IRS letters cannot rely on the IRS’s statements in those letters.

      • Cindy Macdonald says

        How about government forms? When you get a form from the IRS stating your taxes are paid in full with the math to back it up, can the taxpayer rely on that?

        • Cindy Macdonald says

          How about when the U.S Tax Court accuse the taxpayer of subscribing to a certain point of view, even if he does not, and then attacks that point of view? Or, the Court will put words in the mouth of the taxpayer, and then rebut those specific words?

          • Norman Diamond says

            I’ve only had that experience in other courts not Tax Court, but surely the same result occurs: the court wins (even if the government didn’t assert what the court asserts).

  3. Cindy Macdonald says

    And more of the same. This is what “No legislative oversight” acts like. The IRS Did Not Follow Congressional Directives Before Closing Taxpayer Assistance Centers; A Data-Driven Model Should Be Used to Optimize Locations:
    Highlights Page: https://www.treasury.gov/tigta/auditreports/2019reports/201940029_oa_highlights.html
    Report: https://www.treasury.gov/tigta/auditreports/2019reports/201940029fr.pdf

    • Norman Diamond says

      The IRS closed 100% of Taxpayer Assistance Centers that used to be available to US citizens who were subject to the Supreme Court ruling in Cook v. Tait. Subsequently the IRS closed a web site that used to be available for these people to submit questions. I’m not sure if it matters though because they didn’t do much assisting for the difficulties that non-resident US citizens encountered.

      It might matter even less now since the 9th Circuit feels Congress overturned the rights that it had been given by Cook v. Tait. The denial of jury trials in refund suits certainly does not confer the full benefit of citizenship, including taxation, on non-resident US citizens.

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