Opinion
5531-21L
01-31-2022
Richard Lipsky Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson, Judge
Now pending in this "collection due process" case brought under I.R.C. section 6330(d) is the Commissioner's motion for summary judgment (Doc. 7), supported by declarations and exhibits (Docs. 8-9) and supplemented (see Docs. 11-12) at our direction (see Doc. 10). We will require the Commissioner to file a second supplement to that motion before requiring petitioner Richard Lipsky to respond. This order assumes familiarity with our order of January 14, 2022 (Doc. 10).
The Commissioner contends that, for purposes of section 6330(c)(2)(B), Mr. Lipsky had a prior "opportunity" to challenge his liability for so-called "trust fund recovery penalty" ("TFRP") under section 6672(a), because the IRS mailed to him Letter 1153 (proposing assessment of the TFRP), to which his response was an untimely protest (4 days late). The Commissioner therefore contends that IRS Appeals 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.
The Letter 1153 requires a "written appeal within 60 days from the date of this letter". With his first supplement (Docs. 11-12), the Commissioner has made a showing that the original Letter 1153 mailed to petitioner was in fact dated August 8, 2019; and, reckoned against that August 8 date, petitioner's protest was untimely. However, it appears undisputed that an otherwise identical but undated copy of the letter was faxed to petitioner's representative on August 13, 2019, under a cover sheet bearing that date; and, reckoned against that August 13 date, petitioner's protest was timely.
Our order (Doc. 10) observed defects in the motion's showing as to the date of the original letter (defects addressed by the Commissioner's supplement), but our order also stated the following:
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 60-day deadline as iron law, without suggesting how an abuse-of-discretion analysis might be undertaken.
. . . It may be that the Commissioner 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. . . .
We therefore ordered the Commissioner to "file a supplement to his motion for summary judgment, addressing the issues discussed herein". To our reading, however, the Commissioner's supplement is oriented toward simply showing the August 8, 2019, date on the original; but it does not answer the questions we raised that assume that August 8 date on the original. To elaborate on the problem, as we see it
It appears that, when a taxpayer has authorized a representative under a Form 2848 "Power of Attorney", see Internal Revenue Manual part 4.11.55.2.9 (05-29-2018), the agency is supposed to send to that representative "a copy" of "written communications". A version of a document that differs in a material respect--such as a date that establishes a deadline--would seem to fail to be a true "copy". If so, then Appeals evidently failed to comply with this practice described in the I.R.M. and erred when it sent a version of Letter 1153 that lacked the critical date and instead bore a different date on its transmittal sheet. If such an error occurred and induced an untimely submission by a representative, it might be an abuse of discretion for Appeals to forgive its own error and to hold the representative to a deadline it had never disclosed to him.
Alternatively, a taxpayer's representative might assume (as we do) that it is within the power of Appeals either to revoke a Letter 1153 and issue a new one (with a new date and 60-day deadline) or to extend an existing 60-day deadline. If a representative receives a new version of a previously sent letter with a now-blank date field and with a new and current date on a transmittal sheet, then the representative might reasonably conclude that Appeals had thereby deliberately established a new deadline. In that circumstance it might be an abuse of discretion for Appeals to enforce the old deadline.
The Commissioner may have arguments at the ready to address these concerns and vindicate Appeals' enforcement of its deadline, but he has not yet made those arguments. We think it would be appropriate for him to do so before we order petitioner to respond to the motion for summary judgment.
It is therefore
ORDERED that, no later than February 25, 2022, the Commissioner shall either (1) file a second 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 (3) make another appropriate filing.