Uncertain deficiency-notice mailing does not itself authorize abatement

Plain-English summary

Chief Counsel addressed a collection due process case in which an Appeals Officer could not independently verify that a statutory notice of deficiency was properly mailed, and the taxpayer could not remember receiving it. The lack of mailing evidence created a litigation hazard but did not mean the IRS had determined that the assessment was invalid. Without such a determination, section 6404 did not authorize abatement. The taxpayer might still be allowed to challenge the underlying liability under section 6330(c)(2)(B), and the Appeals Officer had an independent duty to verify the assessment's validity. Abatement could become necessary if the Appeals Officer or a court later determined that the assessment was invalid.

Ruling snapshot

• Question: Does uncertainty about mailing and receipt of a deficiency notice require the IRS to abate an assessment during a collection due process case?
• Outcome: Advice given.
• Key authorities: IRC §§ 6330(c)(2)(B) and 6404.

Full text (IRS public release)

ID: CCA_2015040711570557 [Third Party Communication:

UILC: 6330.00-00 Date of Communication: Month DD, YYYY]

Number: 201518016
Release Date: 5/1/2015
From:
Sent: Tuesday, April 07, 2015 11:57:05 AM
To:
Cc:
Bcc:
Subject: RE: Abatement question

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You have asked whether an Appeals Officer in CDP who cannot independently verify
that a Statutory Notice of Deficiency was properly mailed to the taxpayer’s last known
address (by certified mail) combined with a taxpayer who cannot not remember
receiving the SNOD is sufficient to trigger the concluding clause of paragraph 5 of IRM
Part 8.22.8.3(5) (i.e., is a determination that the SNOD was not properly mailed or
otherwise received, which renders the assessment invalid). You are correct that,
because this matter arises in the context of a CDP hearing, the issue likely is whether
the T/P should be allowed to raise a challenge to the existence or amount of the
underlying tax at issue. See section 6330(c)(2)(B). Paragraph 5 of the IRM Part you
cite discusses what must be done (abatement) in a case in which the Service
affirmatively determines that the SNOD was not properly mailed (and was not otherwise
timely received). In this situation, the Service should abate on its own. This is true
regardless of the CDP posture of the matter. In your case, however, the Service
(initially) presumes that the assessment is valid and timely. In investigating whether the
T/P may raise a challenge to the underlying liability, the Service learned that it might be
difficult to demonstrate actual receipt of the SNOD to a court, because the presumption
of official regularity in mailing will easily be rebutted (and indeed will not arise in the first
instance) without document (or other) evidence. ----------------------------------------------------

----------------------------------------------------. However, I do not think that the Service has
concluded that the assessment was (in fact) invalid. Accordingly, it has no authority to
abate (see section 6404). Having said that, there is a hazard that the T/P will challenge
the validity of the assessment. Additionally, the AO has a duty to verify the validity of
the assessment independent of whether the T/P raises a challenge (Hoyle) and this
might be the issue that the AO is considering. If this is or becomes the issue, then the
Service might be required to abate the assessment (e.g., if the court (or the AO on his
or her own) determines that the assessment was invalid). But at this point, this remains
only a hazard. So you need to find out what the T/P is arguing. -------------------------------

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--------------------------------------------. Does this make sense?

Feel free to give me a call to discuss.

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