The Tax Court ruled in Ifeoma Ezekwo v. Comm’r of Internal Revenue, T.C. Memo 2022-54 filed May 31, 2022 that there was no error in the Commissioner’s certification to the Department of State that the taxpayer had a “seriously delinquent tax debt,” and that her passport could be revoked, limited, or an application for the same could be denied. IRC Section 7345 provides that if the IRS certifies that a taxpayer has a “seriously delinquent tax debt,” that certification is transmitted to the Department of State for action relating to a taxpayer’s passport. A “seriously delinquent tax debt” is one that is unpaid, legally enforceable, and in excess of the current threshold adjusted for inflation – currently, $55,000. It is important to note that if a taxpayer is on an installment agreement, or in currently not collectible status, they are not seriously delinquent for this purpose. This case is a straightforward fact pattern with a taxpayer seemingly in denial that they still owed the government money after levy. As such, the Court disposed of the matter quickly. Of note, the Court stated that the only determination they are allowed to make under the statute is whether the Commissioner’s certification of a taxpayer as seriously delinquent was “erroneous.” They made this point to illustrate the fact that they cannot review the underlying liabilities in a review of the certification. The Court also pointed out a couple of exclusions for debts that could be certified. One was relating to a pending Collection Due Process hearing. If timely filed, the debt associated with the periods that triggered the hearing rights would not be included in the total debt for certification purposes. Also, the Court explained that a debt for which innocent spouse relief is requested will not be part of the certification. Taxpayers who have disagreements with the government, and are close to the threshold, could pay down the liability below the current amount that triggers the certification and de-certify. Additionally, this author would note that if a case is assigned to a field Revenue Officer, there are provisions that allow them to expedite a request for decertification if a taxpayer meets an exemption – such as the placement of an installment agreement. During the pandemic, the certification process was paused. That has since restarted and taxpayers are being certified at this time.
IRC 6320 Hearing
The United States Court of Appeals for the Seventh Circuit in Craig L. Galloway v. Comm’r of Internal Revenue, No. 21-2269 decided February 9, 2022 that because the issue at hand was outside of the authority of the Tax Court to decide, then the issue also fell outside of the authority of this Court to review.
The Taxpayer in this case had an unpaid income tax liability of $64,315.43. Taxpayer submitted an Offer in Compromise which was rejected by the IRS because they believed the taxpayer could pay the liability based on the reasonable collection potential. Rather than appeal this decision, taxpayer filed another Offer in Compromise. It was rejected for the same reason. He appealed, but the decision of the Offer unit was sustained. After the appeal, the IRS issued a Notice of Federal Tax Lien Filing with rights to a Collection Due Process hearing under IRC 6320. Taxpayer requested a hearing and during that hearing the Officer advised that he could submit a new Offer directly to the Offer Unit, but that if it was the same Offer, it would be rejected. No Offer was filed and the Tax Lien was sustained. Taxpayer then appealed the decision to sustain the filing of the Notice of Federal Tax Lien to the Tax Court. The IRS won in Tax Court by correctly arguing the taxpayer was prohibited from raising a challenge to the Offer in that setting – which he was trying to do. Taxpayer then appealed to this Court. This Court indicated that their review would be based on whether there was an abuse of discretion by the settlement officer in sustaining the federal tax lien – not a review of the underlying rejection of the Offer. This was because the taxpayer had participated meaningfully in his appeal of the Offer rejection. Because the Tax Court was limited in reviewing the underlying debt, so too is this Court of Appeals.
The United States Tax Court in Mohammad A. Kazmi v. Comm’r of Internal Revenue, T.C. Memo 2022-13 filed March 1, 2022, ruled in favor of the IRS that a properly served and received Letter 1153 constitutes a prior opportunity to challenge the underlying liability and therefore a failure to appeal it prohibits the same challenge at a Collection Due Process hearing (CDP hearing). The taxpayer was issued a Letter 1153, Proposed Trust Fund Recovery Penalty, after interview by a Revenue Officer in his capacity as part-time hourly bookkeeper for his employer who had failed to pay over employment taxes. A taxpayer has 60 days to challenge a Letter 1153 by submitting a written appeal. Taxpayer did not make any effort to appeal and as such the IRS assessed him with the penalty. After issuance of a Notice of Federal Tax Lien, taxpayer filed a timely CDP request and attempted to argue that he should not be held liable for the trust fund recovery penalty. The settlement officer determined the taxpayer was prohibited from challenging the underlying liability in the CDP hearing. Taxpayer argued that a Letter 1153 does not constitute a prior opportunity to address the liability because there is no ability to seek judicial review before the Tax Court if appeals would deny the requested relief. The Court agreed that it is correct there is no opportunity to seek Tax Court relief in this instance, but under the law, the taxpayer could get judicial review by paying the tax and seeking review in the Federal District Court. As such, this does constitute a prior opportunity to seek judicial review. Lesson – always seek Appeal review after issuance of Letter 1153 if there are arguments to be made for relief from assessment.
IRC Section 6672
The United States Court of Appeals for the Fifth Circuit ruled in United States of America v. Charles I. Williams, DDS, as Executor of Mary C. Williams, at Case No. 20-10433 filed July 6, 2021 that Charles I. Williams, acted “willfully” within the meaning of the statute and that the district court’s ruling indicating the same was affirmed. As such, Mr. Williams was held personally liable for the trust fund recovery penalties under section 6672(a) of the Internal Revenue Code. Mr. Williams owned and operated several dentistry practices. After not paying employment taxes, the government pursued collections. The central issue in the case was whether Williams acted willfully to allow for personal liability under the statute. Personal liability against responsible persons can attach under the statute when the person is a responsible person who willfully fails to turn over the withheld taxes. Willfulness requires only a voluntary, conscious, and intentional act, not a bad motive or evil intent. The Court explained that evidence showed that the responsible person had knowledge of payments to other creditors after he was aware of the failure to pay withholding tax is sufficient to show willfulness. Mr. Williams had argued that he was in a mental fog and could not have willfully spurned his tax obligations. Further he argued that he had turned over his businesses’ tax duties to his bookkeeper and another individual. The Court ruled that he was in fact willful because he knew of the unpaid payroll taxes and yet decided to pay private creditors instead of the IRS.
The United States Tax Court ruled in Bell Capital Management, Inc. v. Comm’r of IRS at Docket No. 21714-07 filed June 14, 2021 that the IRS reclassification of Petitioner’s President, Ron H. Bell, as an employee was correct. The IRS used Code section 3121(d), which describes individuals who are considered employees regardless of their status under common law. In particular, the IRS and Court focused on the Treasury Regulations at Section 31.3121(d)-1(b) relating to Corporate Officers. That provision states that “[g]enerally, an officer of a corporation is an employee of the corporation. However, an officer of a corporation who as such does not perform any services or performs only minor services and who neither receives nor is entitled to receive, directly or indirectly, any remuneration is considered not to be an employee of the corporation.” In this case, the petitioner admitted he was an officer. However, many years before the periods associated with the case, the Petitioner moved Mr. Bell from an employee to a leased position and entered a contract for personal services. Mr. Bell continued to render the same services before and after the lease which could not be deemed to be minor services. The Court ruled that because of these factors and the fact that Mr. Bell received indirect remuneration through the leasing company, he could be appropriately classified as an employee.
RRA98 section 1001(a)(4)
The United States Court of Appeals for the Eighth Circuit ruled on June 8, 2021 in Jason Stewart, Kristy Stewart v. Comm’r of Internal Revenue at Docket No. 19-3786 that the taxpayer was not entitled to a new Appeals hearing because the Revenue Officer included notes and correspondence about a meeting with the taxpayers’ attorney in the official file that was later made available to the Appeals Settlement Officer who ultimately reviewed the case. Over time there has been an attempt to “preserve” the independence of settlement officers in appeals from other parts of the IRS, the Court explains. The IRS Restructuring and Reform Act of 1998 (RRA98), further attempted to secure this goal. Independence generally includes separation of investigation and adjudicative functions. It has been ruled that certain comments and statements, particularly about the credibility or demeanor of a taxpayer or their representative and their level of cooperation, are generally prohibited. In this case, the Revenue Officer appeared unannounced at the taxpayers’ attorney’s office. Notes about the meeting, including comments from the lawyer that he would not supply financial information to the Revenue Officer on request, but would only supply it to IRS Appeals, were included in the file for Appeal’s review. A letter from the Revenue Officer was placed in the administrative file the same day indicating that the lawyer refused to provide financial information and directed the IRS Officer to leave. The taxpayers argued that they should have a new hearing and further that the Collections Division should have ceased any continued pursuit of financial information once the Appeal’s request was submitted. The Court disagreed. Relying on an exception set out in Rev. Proc. 2012-18, the Court ruled that the inclusion of the notes was allowed because they were contemporaneous statements pertinent to consideration of the case. These statements were deemed reminders of the need to get financials and what kind of effort might be required to do so. Additionally, the Court ruled that it was not inappropriate to continue investigation after the filing of a due-process hearing. Rather, the Court ruled that even though Appeals was involved, it would be necessary for the field Revenue Officer to continue to gather financial information and work with the taxpayer, so that the IRS could properly evaluate matters during the Appeal’s hearing.
IRC Section 7345
The United States Court of Appeals for the Tenth Circuit in Jeffrey T. Maehr v. United States Department of State, Case No. 20-1124, handed down an opinion on July 20, 2021 in which it ruled in a case of first impression nationwide that the federal government’s statute to force taxpayers to address their tax delinquencies or suffer withdrawal or revocation of their passport until the delinquency is addressed, was in fact constitutional. The taxpayer in the case attacked the law on three grounds: 1) that it violated substantive due process, 2) that is runs afoul of the principles announced in the Privileges and Immunities clauses, and 3) that it contradicts caselaw concerning the common law principle of ne exeat republica. The law at issue was passed by Congress as part of the Fixing America’s Surface Transportation Act (“FAST Act”) in 2015. A certification of delinquency must be transmitted by the IRS to the Department of State. Taxpayers may avoid or decertify by coming into compliance through the establishment of an installment agreement, a Partial Payment Installment Agreement, or even a determination of Currently Not Collectible. This case is an interesting read for the constitutional scholar but doesn’t change the statute at issue.
Collection Due Process hearing
The United States Tax Court ruled in Leciel L. Lowery, Jr. and Charlene A. Lowery v. Comm’r, Docket No. 13022-17L, Filed November 18, 2019, that it could not determine if the IRS Appeals officer has abused her discretion in sustaining the proposed collection levy. As such, the Court remanded the case to Appeals for further review of several specific issues. This situation is rather common. The taxpayers owed the IRS in excess of $638,000 for several years. The taxpayers proposed paying the IRS the sum of $6,064 per month. The problem was that this would not retire all liabilities by the time the government ran out of time to collect. As such, the Appeals officer indicated it would be necessary to either increase the payment proposal to $13,997 per month, or liquidate a retirement account valued at $232,838 and sell a house with equity valued at $50,000 in the wife’s trust. After application of these proceeds, the payment agreement would be $6,341 per month to satisfy the liability within the statute. The Court had too many questions of Appeals to simply rule there was no abuse of discretion. The Court wanted Appeals to: 1) explain why mandatory deductions from husband’s pay were not allowed as a reduction of gross income, 2) review records relating to unreimbursed employee expenses that were not allowed as a reduction of gross income, 3) consider whether Arizona law affects wife’s power as trustee to sell the house in the trust, and finally 4) to determine whether special circumstances, such as age, restrict the full or partial liquidation of petitioner husband’s retirement account to pay back taxes. The taxpayer had argued that he should not be required to liquidate because he was near retirement age. This case is an important one for taxpayers looking for guidance to avoid asset liquidation when future income potential will not allow for payment of the taxes within the collection statute.
The United States Tax Court in Martin Washington Brown v. Comm’r, Docket No. 8999-17L, filed December 9, 2019, held that the IRS Appeals Settlement Officers had not abused their discretion in declining to withdraw a Notice of Federal Tax Lien (NFTL), and sustained the collection action in this matter. Taxpayer owed multiple years of 1040 income tax liabilities that totaled $35,436. In September 2016, the IRS established a Partial Payment Installment Agreement (PPIA) for the sum of $300 per month. The IRS determined that the filing of an NFTL was necessary because the unpaid balances exceeded $10,000. Taxpayer timely sought a Collection Due Process (CDP) hearing after the filing of the NFTL. He alleged that he would lose his job if the NFTL was not withdrawn. The settlement officer advised that the taxpayer could meet the standards for lien withdrawal if he converted the PPIA to a Direct Debit Installment Agreement (DDIA) paying the debt in less than 60 months. He would then have to apply for lien withdrawal on Form 12277 after three months of successful auto debits. The taxpayer would not alter the terms of his PPIA to comply and so Appeals sustained the NFTL filing. The taxpayer filed a Petition in Tax Court for review. The Tax Court remanded to a new Settlement Officer to address whether a lump sum payment made to bring down the balance had been accounted for in the initial conference. The Settlement Officer found that the payments calculated by the first Settlement Officer were correct and requested documentation that his employment was in jeopardy. The taxpayer declined and decided to continue in Court. Ultimately, the Taxpayer failed to substantiate any information regarding possible loss of employment. The Court ruled that the Settlement Officer had not abused his discretion in sustaining the lien. Furthermore, even if the taxpayer had established the DDIA, the Officer would not have abused his discretion by refusing to withdraw the lien as there is no requirement under the law to withdraw the lien because of an installment agreement. This is a voluntary procedure of the Service, not a mandatory one. Taxpayer again presented no evidence in Court regarding possibly loss of employment. The Court entered judgment for the government.
Faxing of Transcripts Eliminated by IRS
On June 4, 2019 the IRS announced that it would stop its tax transcript faxing service on June 28, 2019. The IRS will not fax to taxpayers, or third parties, including tax professionals. This will apply to both individuals and businesses. Tax professionals may ask the IRS to mail transcripts, use e-Services Transcript Delivery Services, or ask the IRS to place a transcript in the practitioner’s e-Services secure mailbox. Additionally, effective July 1, 2019, the IRS will no longer provide transcripts to third parties via Form 4506, Form 4506-T or 4506T-EZ. Third parties will have to rely on transcripts submitted by taxpayers, or utilize the IRS Income Verification Express Service (IVES).