Tax Notes logo

Recent Order Explores Scope of Tax Court Powers in CDP Cases

Posted on June 11, 2015

We have written often on CDP over the two years or so in the blog. Creeping up on twenty years into CDP I am somewhat surprised that there are still some fundamental questions that have yet to be resolved conclusively. One of those issues arose last week in an order that the Tax Court issued in the case of Cosner v Commissoner. (tip of the hat to Lew Taishoff and his excellent blog for flagging the order in a post earlier this week)

In Cosner, the Tax Court wrestled with whether a CDP case was moot after the taxpayer fully paid his liability as a result of an IRS levy served during the time the IRS was enjoined from collecting the tax due to the taxpayer’s having previously filed a valid Tax Court petition in response to a CDP notice of determination.

The facts are somewhat complex, and I will simplify them below (I encourage readers to go to the order itself for the full procedural history). Despite the muddied and perhaps unique set of facts, however, the order is important because it addresses the fundamental powers of the Tax Court in CDP cases and strongly suggests that in certain situations the Tax Court can order a return of proceeds IRS has collected in a CDP proceeding.

The Facts and Legal Background

IRS issued a determination letter sustaining a proposed levy for Cosner’s unpaid 2009 income tax in early March 2012. On March 30, 2012 Cosner “timely mailed to the Court a document that the Court later filed as his petition (petition). The Court received the petition on April 5, 2012. However, the petition was not docketed as such by the Court.”

Generally, IRS is precluded from serving a levy if the taxpayer files a valid petition in a CDP case. As a result of the court not docketing the document as a petition, however, IRS probably did not know about the document Cosner lodged and in December of 2013 served a levy on Cosner’s employer to collect the unpaid liability. In January 2014, Cosner filed a motion under Tax Court Rule 55 asking for injunctive relief and asking for a refund of the amounts IRS collected from its levy. By early July of 2014, Cosner’s 2009 liability was fully paid.

On July 22, 2014 Tax Court issued an order that treated Cosner’s March 2012 petition as having been filed timely nunc pro tunc (more on that below) but denied without prejudice Cosner’s request to return the proceeds that had been collected pursuant to the levy.

After the July 22 Tax Court order, IRS released the levy and refunded to Cosner amounts that were in excess of the 2009 liability. That was not enough for Cosner though, as he filed a motion to reconsider the Rule 55 request that had requested that IRS return to him all amounts that were collected pursuant to the levy. After all, IRS should not have been allowed to levy at all once Cosner validly petitioned the Tax Court.

IRS opposed the motion as moot and requested that the case be dismissed under Rule 53, in part undoubtedly because of the 2006 Tax Court case Greene-Thapedi v Commissioner. That case held that the Tax Court did not have jurisdiction in a CDP case when the IRS had fully satisfied the taxpayer’s liability under its Section 6402 offset powers (despite CDP’s requirement for IRS to freeze enforced collection IRS has continued offset powers even in the face of a timely CDP request).

The Cosner order sets up its analysis by framing the IRS levy on the employer as prohibited, which contextualizes Cosner’s argument in a way that differs from situations where IRS has acted (as in Greene-Thapedi) pursuant to its authority:

Petitioner’s argument has much force. “A nunc pro tunc order retroactively corrects an original record which is erroneous through inadvertence or mistake.” Turkoglu v. Commissioner, 36 T.C. 552, 554 (1961). The Court’s July 22, 2014, Order found that petitioner had timely filed a petition with respect to the March 2, 2012, notice of determination and ordered that the petition be filed nunc pro tunc as of April 5, 2 012. Accordingly, although he did not then know it, respondent was prohibited from serving the [levy on his employer]. See sec. 6330(e)(1). Pursuant to section 6330(e)(1), the Court may enjoin an unlawful levy notwithstanding the general prohibition on such injunctions under section 7421.

The order then directly distinguishes Greene-Thapedi, noting that unlike here an offset is not a levy and that in Greene-Thapedi the IRS offset meant that it “no longer planned to execute the proposed levy.” Moreover, according to the order, Greene-Thapedi did not involve a premature levy, [and] does not appear to preclude the Court from taking appropriate corrective action following a premature levy….”

The order takes the distinction to its conclusion, stating that

[t] he reasoning of Greene-Thapedi implies that the Court may order respondent to return the proceeds of an unlawful levy action even if the unlawful levy fully satisfied the taxpayer’s theretofore unpaid tax liability. Indeed, in Greene-Thapedi the Court expressly observed that it had previously “exercised its inherent equitable powers to order the Commissioner to return to the taxpayer property that was improperly levied upon.” [citations omitted] Moreover, any other conclusion would allow the Commissioner to moot any case brought under section 6330(e) by unlawfully executing a premature levy…

Some Parting Thoughts

Despite the writing on the wall, the order left open the question as to whether the Tax Court had the authority to order the return of the proceeds, either under its inherent powers or Section 6330(e)(1); the case is set for trial next week in Montana.

A few years ago, Carl Smith wrote an excellent Tax Notes piece exploring the reaches of the Tax Court’s equitable powers in CDP cases. The article tackles some interesting issues, including whether the Tax Court should be able to exercise its equitable powers to compel the IRS to enter into a collection alternative.

It also discusses the Zapara case. Zapara involved a CDP case where the Tax Court fashioned an equitable remedy when despite a request, the IRS failed to timely sell the stock it had seized pursuant to a jeopardy levy. Zapara v Comm’r, 652 F.3d 1042 (9th Cir. 2011), aff’g 126 T.C. 215, denying reconsideration 124 T.C. 223 (2005).

In Zapara, the Tax Court held that the IRS violated section 6335(f) when it did not sell the stock within 60 days of he taxpayer’s request (alternatively IRS could have but did not make a determination that it was not within its best interests to sell the property). The Tax Court remanded the case back to Appeals and ordered Appeals to credit the taxpayers an amount against their liabilities as if they had sold their stock on the 60th day. On appeal the Ninth Circuit affirmed the Tax Court.

IRS issued an AOD disagreeing with the Ninth Circuit and Tax Court’s view on the court’s power in a CDP case:

The Service, however, disagrees that the Tax Court has authority to order a credit to the taxpayer for the Service’s failure to comply with section 6335(f). Section 7433 is the exclusive remedy for recovering damages resulting from the reckless, intentional or negligent disregard of any provision or regulation in connection with the collection of tax, including any violation of section 6335(f). An action for damages under section 7433 must be brought in a district court. The relief ordered by the Tax Court was a substitute remedy to compensate the taxpayers for the monetary damages sustained as a result of the Service having failed to sell the stock or otherwise respond to their request to sell. Section 6335(f) only requires that the Service sell the property or provide notice to the taxpayer and does not provide for any entitlement to monetary relief.

Zapara and Cosner both explore issues relating to the Tax Court’s jurisdictional power to fix mistakes. In some ways, Cosner is a less sympathetic case than Zapara because it appears that it was not the IRS’s fault that it served the levy on his employer. It is also possible (though not clear from the order) that the taxpayer may have even contributed in Cosner to the confusion by perhaps not styling his original petition in the way that facilitated the court’s treating it as such. Nonetheless, even if that is the case, I think in cases such as this where the IRS acts outside its authority, even if it did not know it was so acting, the court should be free to fashion a remedy to bring the taxpayer back to his position prior to the unauthorized actions. Absent that authority, the taxpayer has no efficient practical remedy, and Congress’ wish to allow the Tax Court to review the IRS’s proposed collection actions and possible collection alternatives is illusory.

Subject Areas / Tax Topics
Copy RID