Opinion
4118-23
09-04-2024
EPHRAIM A. ROLLOLAZO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Zachary S. Fried Special Trial Judge
The Petition filed to commence this case on February 24, 2023, seeks to invoke our jurisdiction under Internal Revenue Code (I.R.C.) section 6330(d)(1) with respect to a Decision Letter on Equivalent Hearing (decision letter), sustaining a proposed levy action to collect petitioner's Trust Fund Recovery Penalty liability for the first quarter of 2016 (underlying liability).
On April 11, 2022, the Internal Revenue Service (IRS) issued a notice of intent to levy (levy notice) to petitioner seeking to collect the underlying liability. Petitioner had until May 11, 2022, to request a collection due process (CDP) hearing to challenge the levy notice. On May 25, 2022, petitioner filed his request for a CDP hearing on Form 12153, Request for a Collection Due Process or Equivalent Hearing, 44 days after the stated deadline. It is unknown why petitioner filed his request for a CDP hearing late. Consequently, the IRS provided petitioner with an equivalent hearing, pursuant to Treasury Regulation section 301.6330-1(i)(1), but not a CDP hearing. Subsequently, the IRS issued to petitioner the decision letter sustaining the proposed levy action.
On November 28, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to All Periods Petitioned Except for the Period Ending March 31, 2016. Therein, respondent argues, among other things, that this case should be dismissed as to the proposed levy action to collect petitioner's underlying liability on the ground that no notice of determination was sent to petitioner as to that period. On December 29, 2023, petitioner filed an Objection to respondent's motion.
In this case, the IRS Independent Office of Appeals (Appeals Office) has not considered whether the facts of this case warrant equitable tolling of the 30-day period under section 6330(a)(3)(B). See Organic Cannabis Foundation, LLC v. Commissioner, 161 T.C. No. 4 (September 27, 2023) (holding that the 30-day period in section 6320(a) (3)(B), to file a request for a CDP hearing, is subject to equitable tolling). If equitable tolling applies, and the request for a CDP hearing was timely, the decision letter may be treated as the equivalent of a notice of determination for purposes of section 6330(d)(1). See Craig v. Commissioner, 119 T.C. 252, 253 (2002).
That being so, it is
ORDERED that respondent's above-referenced motion to dismiss for lack of jurisdiction, filed November 28, 2023, is held in abeyance. It is further
ORDERED that on the Court's own motion this case is remanded to the Appeals Office for the limited purpose of affording petitioner a supplemental hearing pursuant to I.R.C. sections 6320 and 6330 to determine whether equitable tolling of the CDP hearing request period with respect to the levy notice is warranted. It is further
ORDERED that the above-referenced supplemental hearing shall take place at a reasonable and mutually agreed upon date and time, but not later than October 28, 2024. It is further
ORDERED that, on or before November 27, 2024, the parties shall file with the Court a status report (preferably a joint report), regarding the then-present status of this case.