We continue with our three part series on Godfrey. Parts II and III are written by frequent guest blogger Carl Smith. Carl has updated his post to address some of the comments made on Part I. I suggest going to the comments if you want to see the full discussion. Keith
In a prior post on Godfrey v. Commissioner, Keith explained how the IRS’ actions in that case might have violated section 6304(a)(2). With only a few exceptions (none, I believe, relevant in Godfrey), section 6304(a)(2) prohibits the IRS from communicating directly with a taxpayer in connection with collection where the taxpayer is represented by a holder of a power of attorney on file with the IRS. In Godfrey, the IRS sent a notice of intention to levy (“NOIL”) directly to the taxpayer at the taxpayer’s last known address, but she did not actually receive the NOIL. The NOIL was returned unclaimed. The IRS did not send a copy of the notice to the taxpayer’s POA holder. By the time the taxpayer and her attorney realized that an NOIL had been issued, over a year had passed. The next day, the POA filed with the IRS a Form 12153 requesting a CDP hearing. The IRS then sent a letter denying any CDP hearing because the Form 12153 was filed too late – beyond the 30-day period provided in section 6330(a)(2) and (3)(B) for requesting a hearing. Within 30 days of that letter, the taxpayer petitioned the Tax Court. Without discussing section 6304(a)(2) (which the taxpayer had not raised in the case), in its order, the Tax Court dismissed the case for lack of jurisdiction, in part, on the ground that no copy of the NOIL need have been sent to the POA to make the NOIL valid. In making this holding, the court drew an analogy to well-settled case law holding that no copy of a notice of deficiency need be sent to a POA to make a notice of deficiency valid.
The taxpayer in Godfrey has moved to vacate the dismissal order, citing the violation of section 6304(a)(2) as one of two grounds. Section 6304(a)(2) (which only applies to collection communications, not notices of deficiency) renders the court’s analogy inapt. Leaving aside for the moment the problem of the section 6304(a)(2) argument being raised belatedly, what if a taxpayer who was in a similar situation (i.e., NOIL sent to last known address, NOIL not received, POA not served, so no Form 12153 filing in the 30-day period, and filing in the Tax Court within 30 days of IRS letter refusing to give a CDP hearing) had raised the section 6304(a)(2) violation in her petition, so the court would have to address it? Assuming that the Tax Court found a violation of section 6304(a)(2), what remedy should be given? This post explores the possible remedies. Disclosure note: Because I feel so strongly about the problem of lack of notice to counsel, in Godfrey I just entered a co-appearance with her current counsel, John Genova, Esq., and assisted in preparing and filing the motion.
One remedy is obvious: Section 6304(c) states: “For civil action for violation of this section, see section 7433.” Section 7433 allows a suit in district court for actual damages sustained by a taxpayer for wrongful collection actions taken by IRS employees intentionally, recklessly, or negligetntly. However, clearly, the Tax Court has no authority to issue damages judgments under section 7433. Further, there has never been a reported section 7433 district court suit involving an alleged violation of section 6304(a)(2), so we have no idea how actual damages would be calculated if such a suit were brought.
Frequent commentator Jason T. has posted a comment on the Godfrey I post taking issue with Keith and my belief that section 6304(a)(2) applies to an NOIL. He cites three district court opinions or orders saying that section 7433, which applies “in connection with any collection of . . . tax”, cannot provide damages with respect to NOIL procedure violations, since an NOIL is not a collection action, but precedes collection. By analogy, he thinks that section 6304(a)(2), which provides that the “Secretary may not communicate with a taxpayer in connection with the collection of any unpaid tax” should be read in pari materia with the somewhat similar language in section 7433 that these courts cited in holding that NOILs are not collection actions. I am not sure I agree with the district courts about section 7433, and in none of the three cases had the IRS yet started collection, whereas in Ms. Godfrey’s case, the IRS eventually started levying (arguably as a result of the section 6304(a)(2) violation). I also think that the better analogy to interpreting the words “the Secretary may not communicate with a taxpayer in connection with the collection of any unpaid tax” is to the words in the Fair Debt Collection Practices Act, 15 U.S.C. section 1692c(a)(2), that “a debt collector may not communicate with a consumer in connection with the collection of any debt” – the source of section 6304(a)(2)’s language. As noted by Keith there are court opinions saying notices, such as dunning letters, are communications in connection with the collection of any debt under that Act. For the purposes of the rest of this post, I ask the reader to just assume for now that the court would find a section 6304(a)(2) violation in a Godfrey-type case. The point of this post is only to explore what remedies there might be. Even if section 7433 might not be available, that is not the only possible remedy.
For example, does the Tax Court have any equitable remedies that it might apply that could put the taxpayer into the situation that she should have been in, but for the violation – i.e., having a CDP hearing?
There is actually precedent for the Tax Court to provide specific equitable remedies to violations of the Internal Revenue Code in CDP matters before the Court. In Zapara v. Commissioner, 124 T.C. 223 (2005), and 126 T.C. 215 (2006), aff’d 652 F.3d 1042 (9th Cir. 2011), in the course of a CDP hearing, the taxpayer asked that the Appeals Officer arrange for the sale of certain stock that had been subject to a jeopardy levy. Despite being obligated to honor the request within 60 days under section 6335(f), the IRS did not sell the stock, and the stock declined in value considerably. In the CDP appeal in the Tax Court, the taxpayers successfully persuaded the court to direct the IRS to credit their account with the value of the stock on the date that the stock should have been sold under section 6335(f) (60 days after the request), and the court remanded the case to Appeals for a finding as to the appropriate credit. 124 T.C., at 238-243. When the case returned from Appeals to the Tax Court, the IRS argued that the court had, in effect, granted damages to the taxpayers under section 7433 for unauthorized collection actions, even though the court lacked jurisdiction to make rulings under that section. The court agreed with the IRS that it lacked jurisdiction to issue damages judgments under section 7433, but the court held that it possessed the inherent power to provide a specific equitable remedy to the taxpayer that would place the taxpayer back into the position the taxpayer would have been in, but for the violation.
If the Zapara holding were applied in the Godfrey-type situation, the IRS’ direct communication with the taxpayer without also communicating with counsel could be repaired by holding the period open to file a CDP hearing until counsel was served with the NOIL. If that were to be done in the Godfrey-type case, the Form 12153 filing would have been timely. If the letter denying the CDP hearing in response to the Form 12153 filed in Godfrey-type case were to be treated as a notice of determination, then the taxpayer in such a case – having filed in the Tax Court within 30 days of the letter’s issuance – should be entitled to Tax Court review of that failure to be given a CDP hearing. Note that the Tax Court has held that the IRS’ erroneous letter treating an Appeals hearing as an “equivalent hearing”, when the Form 12153 had been timely filed to request a CDP hearing, should be treated as a notice of determination that can form the basis of Tax Court jurisdiction. Craig v. Commissioner, 119 T.C. 252 (2002). And so the Tax Court, in the Godfrey-type situation, could remand the matter to Appeals to afford a CDP hearing, while retaining jurisdiction in the Tax Court to review any such “supplemental” notice of determination issued after the hearing.
This particular equitable remedy is similar to one that is afforded in New York state courts and administrative agencies. There, it is held that the time to file a petition in a court or agency is tolled until counsel is sent a notice by the agency where the agency had sent a notice directly to a person that the agency knew was represented by counsel, but had not at the same time sent the notice to the counsel. Matter of Bianca v. Frank, 43 N.Y.2d 168 (1977) (30-day period with respect to notice proposing to dismiss police officer); Matter of Multi Trucking, Inc., TSB-D-88(8)C, 1988 N.Y. Tax LEXIS 331 (N.Y. Tax Appeals Tribunal 1988) (90-day period to contest franchise tax notices of deficiency); Matter of Hyatt Equities LLC, 2008 N.Y. Tax LEXIS 94 (N.Y. Tax Appeals Tribunal 2008) (90-day period to contest conciliation order denying sales tax refund claim).
The only issue I see about affording this specific equitable remedy (i.e., tolling the 30-day period to file for a CDP hearing until counsel is served with the NOIL) is whether the 30-day period is jurisdictional or otherwise not subject to equitable tolling. If the period is (1) jurisdictional or (2) non-jurisdictional, but otherwise not subject to equitable tolling, this remedy cannot be afforded. This gets us into recent non-tax Supreme Court case law that I have discussed in posts within the last year on Volpicelli v. United States, 777 F.3d 1042 (9th Cir. 2015), and Lippolis v. Commissioner, 143 T.C. No. 20 (Nov. 20, 2014).
Under current non-tax Supreme Court case law that was applied in those two lower-court tax opinions, time limits are quintessential “claims processing rules” that are no longer to be treated as jurisdictional, unless Congress provides a “clear indication” that it wants a time period to be jurisdictional. Henderson v. Shinseki, 131 S. Ct. 1197, 1203 (2011) (120-day period to file a petition in the Article I Court of Appeals for Veterans Claims held not jurisdictional). The separation of a time period from the actual jurisdictional grant, however slight, provides a strong indication that Congress did not want a time period to be jurisdictional. Id. at 1204-1205. See Gonzalez v. Thaler, 132 S. Ct. 641, 651 (2012) (“[m]ere proximity will not turn a rule that speaks in nonjurisdictional terms into a jurisdictional hurdle”); cf. Lippolis v. Commissioner, supra (holding that the $2 million disputed liability amount threshold at section 7623(b)(5)(B) in connection with a Tax Court whistleblower award suit under section 7623(b)(4) is not jurisdictional when the threshold is not contained within the jurisdictional grant paragraph – even though it is in the same subsection of the Code).
The provision giving Appeals jurisdiction to hold CDP hearings (even though the provision doesn’t use the word “jurisdiction”) is at section 6330(b)(1), which states: “If the person requests a hearing in writing under subsection (a)(3)(B) and states the ground for the requested hearing, such hearing shall be held by the Internal Revenue Service Office of Appeals.” By contrast, the 30-day period to file for a CDP hearing is set out at section 6330(a)(2) and (3)(B) (twice), but that is in a different subsection from the jurisdictional grant. Further, the jurisdictional grant does not contain any limiting language that the CDP hearing request be timely filed – something Congress could have included to give a “clear indication” that it intended the 30-day period to be jurisdictional. Compare Pollock v. Commissioner, 132 T.C. 21, 30 (2009) (holding 90-day period in which to file a stand-alone innocent spouse petition at section 6015(e)(1) is jurisdictional; “The most important point to notice is that the Code here actually uses the word ‘jurisdiction’ — giving us ‘jurisdiction’ if someone files her petition within the 90-day time limit. Statutes granting a court ‘jurisdiction’ if  a case is filed by a stated deadline look more like jurisdictional time limits.”). So, it seems pretty clear that the 30-day period to request a CDP hearing is not jurisdictional.
It is also likely that the 30-day period is subject to equitable tolling. The 30-day period is much more like the simple one-year statute of limitations for filing for habeas relief in federal district court in death penalty cases discussed in Holland v. Florida, 560 U.S. 631 (2010) (Court found the one-year period subject to equitable tolling), than the complex periods under section 6511 to file a tax refund claim (already containing other numerous exceptions, including one, unusually, limiting the amount of the claim) that the Court held was not subject to equitable tolling in United States v. Brockamp, 519 U.S. 347 (1997). See Volpicelli v. United States, supra (relying on Holland and distinguishing Brockamp in finding that the simple 9-month period in which to file a wrongful levy suit is subject to equitable tolling).
Further, as will be discussed in the final post on Godfrey, there is legislative history that seems to provide that an NOIL that is not received in the 30-day time period can still belatedly give rise to a CDP hearing, even when the request is made outside the 30-day period. This is even broader than equitable tolling – strongly suggesting that Congress would have wanted the 30-day period to be subject to equitable tolling generally.
In sum, I see no reason why the Tax Court could not give the specific, tailored equitable relief for a section 6304(a)(2) violation that I noted above.
The third and final post on Godfrey will discuss whether an NOIL that is properly mailed to the taxpayer’s last known address, but that is not actually received by the taxpayer, can give rise to a CDP hearing when the request for such hearing is filed late. A regulation on which the Godfrey court relies says “no”, but I think that regulation is invalid. This is another argument that was belatedly made in the motion to vacate in the Godfrey case.