CCA 1312036: the taxpayer filed a timely protest of the proposed trust fund recovery penalty

Plain-English summary

Chief Counsel advised that the taxpayer had filed a timely and valid protest of a proposed trust fund recovery penalty assessment under IRC § 6672(b)(3). Although the taxpayer's representative said the letter was not intended to be a formal written appeal, the letter responded in detail to the proposed assessment and was sent to Appeals as a valid protest. The advice noted that a protest filed within the proper period could be timely even if incomplete, and that the revenue officer should contact the representative about defects before forwarding it to Appeals.

Ruling snapshot

• Question: Was the taxpayer's protest of the proposed trust fund recovery penalty timely and valid?
• Outcome: Advice given, the protest was timely and valid.
• Key authorities: IRC § 6672(b)(3); IRM §§ 5.7.6.1.6(1) and 5.7.6.1.6(3)

Full text (IRS public release)

ID: CCA_2012112806285242 Number: 201312036
Release Date: 3/22/2013
Office: ----------------
UILC: 6672.00-00

From: ------------------
Sent: Wednesday, November 28, 2012 6:28:54 AM
To: ---------------
Cc: ------------------
Subject: FW: Informal Advice on "Timely Protest" for Purposes of I.R.C. § 6672(b)(3) -- --------------------

Good morning: Here is our response to your question. This has been reviewed and approved by my
reviewer.

We agree that the taxpayer filed a timely, valid protest of the Letter 1153 notice of proposed
assessment of the Trust Fund Recovery Penalty. In response to the Letter 1153, the POA sent the RO a
letter dated ------------------, which was within the appropriate timeframe for protesting a proposed
assessment of the TFRP. Although the POA’s letter states that it “is not intended to constitute a written
appeal of the proposed assessment and that [taxpayer] would continue to have the right to file a written
appeal following the [revenue officer’s] review of this [the letter],” the letter provides a detailed response
to the Letter 1153 and was sent by the revenue officer to Appeals as a valid protest. Both the RO and the
POA believed that the taxpayer had contested the proposed assessment. The RO sent a letter dated
-------------------- informing the POA that he was forwarding the case to Appeals for consideration. The
POA believed that his --------- letter preserved the taxpayer’s right to file a more formal claim and asked
the RO to inform him if this was not the case. The RO did not inform the POA that more information was
needed. Instead, he treated the letter as a valid protest. Treating the letter as a valid protest is
consistent with IRM 5.7.6.1.6. IRM 5.7.6.1.6(1) (Note) provides that a protest filed within the appropriate
timeframe is timely even if it is incomplete. If the information is incomplete, the RO will contact the POA
and inform him of the defects. IRM 5.7.6.1.6 (3). If the POA does not provide a perfected protest within
30 days, the RO will still send the protest to Appeals, which will accept jurisdiction over the protest. Id.