CCA 1118019: A taxpayer receives new collection due process rights for an unassessed liability

Plain-English summary

Chief Counsel advised that a taxpayer is entitled to new collection due process rights when an underlying assessment is invalid and a new assessment is later made. The memorandum distinguished additional assessments from interest or penalty accruals and explained that a new collection due process notice is generally required for additional assessments. In the specific situation discussed, the original notice was invalid because it was issued before the liabilities were assessed. The advice concluded that the taxpayer should receive collection due process rights for the first valid assessment and that a settlement officer would have had to verify the assessment's validity if a hearing had been requested.

Ruling snapshot

• Question: What collection due process rights apply when a levy notice was issued before the underlying liabilities were assessed?
• Outcome: Advice given.
• Key authorities: IRC § 6330(a)(2) and § 6330(c)(1); Treas. Reg. §§ 301.6330-1(a)(3) Q&A-A10, (b)(2) Q&A-B4, and (d)(2) Q&A-D1; Hoyle v. Commissioner, 131 T.C. 197 (2008).

Full text (IRS public release)

ID: CCA_2011040513480025 Number: 201118019
Release Date: 5/6/2011
Office: --------------
UILC: 6330.00-00

From: ----------------
Sent: Tuesday, April 05, 2011 1:48:12 PM
To: --------------------
Cc: -------------------------------------------------------------------
Subject: RE: Erroneous Levy

On a blank slate, your position would be perfectly defensible. However, that is not the position of
Counsel. If an underlying assessment is invalid, then a taxpayer would be entitled to new CDP rights if
and when a new assessment is made. Although Treasury regulation sec. 301.6330-1(b)(2) Q&A-B4
provides that a taxpayer is entitled to only one CDP hearing with respect to a particular tax type and tax
period, it is clear that a tax type for any given tax period must be distinguished on an assessment by
assessment basis. This is because the circumstances in which a taxpayer may receive more than one
pre-levy CDP notice include those "where the same type of tax for the same period is involved, but where
the amount of the unpaid tax has changed as a result of an additional assessment of tax (not including
interest or penalties)." Treas. Reg. sec. 301.6330-1(d)(2) Q&A-D1. Thus, in situations involving
additional assessments, barring additional assessments of only accruals of interest or penalties, the
Service must afford the taxpayer with additional CDP (levy) rights. This is the regulatory support for the
IRM provisions that you cited in the Appeals Manual (IRM Parts 8.22.2.2.3(1) and 8.22.2.2(8)).

Note that in the situation you describe, it was determined that the original issuance of the section 6330
CDP notice was invalid, because it inadvertently was issued before the underlying liabilities were
assessed. This is not (technically) a situation involving an "additional assessment," because there has
been only one assessment. Accordingly, the Service must issue section 6330 CDP rights to the taxpayer
no less than 30 days before the date of levy pursuant to the statute. I.R.C. sec. 6330(a)(2).

Note that this situation also does not involve an "improperly" issued CDP notice under Treasury regulation
sec. 301.6330-1(a)(3) Q&A-A10. If the Service properly had assessed the liabilities, but instead had
failed to properly provide the taxpayer with the CDP notice (e.g., if the Service had sent the notice to an
address other than the taxpayer's last known address), then the taxpayer would be entitled to a
"substitute" notice, which would afford the taxpayer with CDP rights. In this case, the Service has yet to
provide the taxpayer with CDP rights with respect to the assessments at issue.

In the situation you describe, the taxpayer did not request a CDP hearing within the relevant 30-day
period following the issuance of the (invalid) section 6330 CDP notice. However, if the taxpayer had
requested a CDP hearing, the Settlement Officer would have been required to verify the validity of the
assessment pursuant to section 6330(c)(1). See Hoyle v. Commissioner, 131 TC 197 (2008). After
determining that the liabilities had not been assessed, the Settlement Officer would have had to issue a
Notice of Determination finding that the proposed collection could not proceed. As explained in our prior
advice, the bottom line is that the taxpayer was not afforded CDP rights with respect to the assessments
that are the subject of the levy. The CDP notice that was sent before assessment would be invalid. The
taxpayer should be afforded CDP rights pursuant to section 6330(a) for the first (and to date, only)
assessment of the tax types and periods at issue.

As always, feel free to give me a call directly if you want to further discuss.

Regards,

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