Opinion
5531-21L
01-14-2022
Richard Lipsky Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson, Judge.
This is a "collection due process" case brought under I.R.C. section 6330(d). The Commissioner has filed a motion for summary judgment. (Doc. 7.) We will require the Commissioner to supplement that motion before requiring petitioner Richard Lipsky to respond.
Background
The issue
A major issue in this case is whether, under section 6330(c)(2)(B), petitioner is entitled to dispute his underlying liability for so-called "trust fund recovery penalty" under section 6672(a). The Commissioner contends that Mr. Lipsky had a prior "opportunity" to challenge the liability arising from the IRS's mailing to him Letter 1153, but that his response to that letter was an untimely protest (4 days late), and that IRS Appeals therefore properly declined to entertain that challenge at the time and rightly declined to entertain such a challenge in the subsequent CDP hearing that is now the subject of this Tax Court case. It appears that the date of the Letter 1153 is critical to the resolution of that prior "opportunity" issue.
The petition
Paragraph 30 of the petition (Doc. 1) alleges that the Letter 1153 was sent to Mr. Lipsky's representative by "fax" on August 13, 2019. The Letter 1153 requires a "written appeal within 60 days from the date of this letter". Paragraph 31 of the petition alleges that Mr. Lipsky's protest was submitted to the IRS on October 11, 2019, which was 59 days after the IRS's fax.
We believe that the Commissioner does not dispute the foregoing facts.
The motion
The Commissioner's motion for summary judgment states as follows:
12. On August 8, 2019, respondent sent to petitioner Letter 1153 (notice of proposed TFRP assessment) by certified mail return receipt to petitioner's then-last known address, the address in the Letter 1153. This notice of proposed TFRP
assessment was received and signed for at petitioner's then-last known address on August 12, 2019. Rapiejko Decl. Exs. A, B, L.
13. On August 13, 2019, respondent's Revenue Officer also faxed a copy of the notice of proposed TFRP assessment [i.e., the Letter 1153] to petitioner's then POA. Rapiejko Decl. Exs. B, L.
14. The notice of proposed TFRP assessment advised petitioner that he had a right to appeal the proposed assessment within 60 days of the date of the letter, which date was Monday, October 7, 2019. The notice further advised petitioner that "If we don't hear from you within 60 days from the date of this letter . . ., we'll assess the penalty and begin collection action." Rapiejko Decl. Ex. L.
15. Petitioner submitted a protest of the proposed TFRP assessment in an envelope postmarked October 11, 2019-four (4) days beyond the 60-day window in which to timely file a protest. Rapiejko Decl. Exs. A, B.
That is, the motion alleges (in paragraph 12) the date on which the Letter 1153 was "sent . . . by certified mail" but does not allege "the date of this letter" (i.e., the date printed on the letter). The cited Exhibit A and is Appeals's notice of determination (Ex. A, Doc. 8 at 14, which states that "[t]he Letter 1153 is dated 08-08-2019") and a Case Activity Record Print (Ex. B, Doc. 8 at 30-31, which includes the settlement officer's notes that "the L1153 is dated 8-8-2019).
However, the copy of Letter 1153 that the Commissioner cites (Ex. L, Doc. 8 at 176) has a sloppy handwritten date of "8/8/2019". That exhibit is declared to be "contained in the [IRS's] . . . administrative case file" (Doc. 8 at 2, para. 5)--that is, Exhibit L is (of course) not the original that was mailed to Mr. Lipsky, and we cannot tell whether (a) Exhibit L is a copy reflecting a handwritten date that appeared on the original or (b) the original was undated, and Exhibit L bears a handwritten date that was put on the file copy.
The Commissioner's motion papers also include a copy of the IRS's August 13, 2019, transmission of Letter 1153 to Mr. Lipsky's representative. (Ex. S, Doc. 8 at 253-257). Letter 1153 as the IRS faxed it was undated; the "Date" field on the letter was blank; and the fax cover sheet bore a date (as Mr. Lipsky alleges) of "August 13, 2019" (not "8/8/2019").
If the original Letter 1153 actually sent to Mr. Lipsky did bear a date of "8/8/2019", then the IRS sent the representative a purported copy of the letter that was not in fact identical to the original in a material respect; the supposed copy lacked the critical date that set the deadline.
Analysis
If the Letter 1153 was dated August 8, 2019 (as the Commissioner asserts), then Mr. Lipsky's October 11 protest was not by day 60 but rather on day 64; but if Letter 1153 was dated August 13, 2019 (as Mr. Lipsky asserts), then the protest was filed on day 59. The Commissioner's burden as movant under Rule 121 is to show that there is no genuine dispute of material fact--in this case, no dispute about "the date of this letter [1153]." But we think that there is a dispute about that issue that is patent on the face of the Commissioner's submission.
As we read the Commissioner's motion, he seems to assume that the operative date that starts the 60-day period within which to file a protest is the date that Letter 1153 was mailed. However, the deadline actually stated (twice) in the Letter 1153 itself is "60 days from the date of this letter", which we think probably should be best understood to mean the date that appears on the letter.
The declarant certifying the exhibits is the Commissioner's counsel in this case, not the Revenue Officer (Andrea I. Faust) whose name appears on the Letter 1153 and who was apparently responsible to prepare it and have it mailed (nor even the settlement officer at Appeals who wrote in his case notes that the letter was "dated 08-08-2019"). That is, the Commissioner does not authenticate the handwritten date by anyone who could claim personal knowledge of the letter's preparation.
Thus, at this point the summary judgment record includes two copies of the letter, one of which was sent to the taxpayer's representative with a blank date field and a stated transmission date of "August 13, 2019", and the other of which has a handwritten date ("8/8/2019") that may or may not have appeared on the original. If we make all possible inferences in Mr. Lipsky's favor, we would have to assume that the letter as mailed to him was undated and that the protest was timely as having been submitted within the 60-day period after the fax date on the copy sent to his representative.
Moreover, the 60-day deadline stated in Letter 1153 is not an unbending jurisdictional deadline nor even a non-jurisdictional statutory deadline as to which a taxpayer might have to justify equitable tolling. It is instead an administratively imposed deadline. That does not mean we can simply ignore it; but rather we should apparently review for abuse of discretion, see Barnhill v. Commissioner, 155 T.C. 1, 21 (2020), Appeals's application of that deadline on the facts of a given case. We would have to decide, among other things, whether it was an abuse of discretion for Appeals to impose a deadline after sending the representative a supposed copy of Letter 1153 that was in fact not a true copy because it lacked the critical date.
The Commissioner's motion does not address these issues. Without argument or elaboration, it treats the mailing date (August 8, 2021) as the pertinent date, and it treats the 60-day deadline as iron law, without suggesting how an abuse-of-discretion analysis might be undertaken.
We might therefore simply deny the motion for summary judgment, but to do so would hardly advance the case. It may be that the Commissioner can make a showing of the actual "date of" the Letter 1153; and it may be that he can demonstrate that it was not an abuse of discretion to hold Mr. Lipsky to the 60-day deadline stated in the letter. If so, then summary judgment may be a useful means for presenting the issues in this case. It is therefore
ORDERED that Mr. Lipsky shall immediately communicate with the Commissioner about the issues discussed herein, and shall immediately disclose any information that he has (such as the original Letter 1153) that bears on the "date of" that letter. If the parties can stipulate the fact of the date (if any) that appeared on the original Letter 1153, then they should do so. It is further
ORDERED that, no later than January 28, 2022, the Commissioner shall either (1) file a supplement to his motion for summary judgment, addressing the issues discussed herein, or (2) withdraw his motion, perhaps also moving the Court to remand the case so that Appeals can consider Mr. Lipsky's liability challenge, or perhaps indicating an intention to proceed to trial on the issue of the date of the Letter 1153, or (3) make another appropriate filing.