Most Serious Legislative Most Litigated Case Advocacy Appendices Problems Recommendations Issues LR COLLECTION DUE PROCESS (CDP): Amend Internal Revenue #4 Code § 6330 to Provide That the Standard and Scope of Tax Court Review in CDP Cases Is De Novo Regardless of Whether the Underlying Liability Is at Issue TAXPAYER RIGHTS IMPACTED1 ■■ The Right to Challenge the IRS’s Position and Be Heard ■■ The Right to Appeal an IRS Decision in an Independent Forum ■■ The Right to Privacy ■■ The Right to a Fair and Just Tax System PROBLEM Two related concepts affect how courts evaluate the correctness of an IRS action or determination: scope of review and standard of review. “The scope of judicial review refers to the evidence the reviewing court will examine in reviewing an agency decision. The standard of judicial review refers to how the reviewing court will examine that evidence.”2 When the scope of review is de novo, a court reviewing an IRS determination does not limit its consideration to evidence already contained in the IRS’s administrative record, but engages in independent fact-finding and may receive into evidence testimony and exhibits that were not included in the administrative record.3 The alternative arrangement, sometimes referred to as the “record” rule, requires the reviewing court to base its judgment only on evidence already contained in the IRS’s administrative record. When the standard of review is de novo, the reviewing court considers the evidence before it anew, without deference to the IRS’s determination.4 When the standard of review is for abuse of discretion, the court overturns the IRS’s determination only where it is shown to be arbitrary, capricious, or without sound basis in fact.5 Since 1924, when review of a taxpayer’s pre-payment challenge to the validity of a proposed assessment first became available, the scope and standard of judicial review has beende novo.6 Since 1998, when review of a taxpayer’s pre-payment challenge to proposed collection of an assessed tax became available pursuant to the IRS Restructuring and Reform Act of 1998 (RRA 98), the nature of judicial review has depended on whether the underlying tax liability is at issue.7 In collection due process (CDP) cases, if the underlying tax liability is at issue, the scope and standard of judicial review is de novo.8 If the underlying 1 See Taxpayer Bill of Rights (TBOR), www.TaxpayerAdvocate.irs.gov/taxpayer-rights. The rights contained in the TBOR are now listed in the Internal Revenue Code (IRC). See Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Division Q, Title IV, § 401(a) (2015) (codified at IRC § 7803(a)(3)). 2 Franklin Sav. Ass’n v. Office of Thrift Supervision, 934 F.2d 1127, 1136 (10th Cir. 1991) (emphasis added). 3 Robinette v. Comm’r, 123 T.C. 85, 95 (2004), rev’d 439 F.3d 455 (8th Cir. 2006). 4 Porter v. Comm’r, 132 T.C. 203 (2009). 5 Jonson v. Comm’r, 118 T.C. 106, 125 (2002), aff’d 353 F.3d 1181 (10th Cir. 2003). 6 See Appeal of Barry, 1 B.T.A. 156 (1924); Greenberg’s Express, Inc. v. Comm’r, 62 T.C. 324 (1974). 7 Pub. L. 105–206, § 3401, 112 Stat. 685, 746, enacting IRC §§ 6320 and 6330, discussed below. 8 H.R. Conf. Rep. No. 105-599, 105th Cong. 2d Sess. Part 2, at 266 (1998). 364 Legislative Recommendations — Collection Due Process: Court Review in CDP Cases Is De Novo Most Litigated Legislative Most Serious Appendices Case Advocacy Issues Recommendations Problems liability is not at issue, the standard of review is for abuse of discretion.9 As discussed below, this standard of review places an unnecessary burden on taxpayers, for whom the event of collecting the tax is at least as important as the previous determination to assess additional tax. The courts do not agree as to the appropriate scope of review in CDP cases when the underlying tax is not at issue. In Robinette v. Commissioner, the Tax Court held that where the underlying liability is not at issue the scope of its review is de novo.10 Thus, the court considered evidence introduced at trial that was not part of the administrative record. The Court of Appeals for the Eighth Circuit reversed the Tax Court’s decision, holding that the Tax Court’s review in Robinette was limited to the administrative record.11 The Courts of Appeal for the First and Ninth Circuits agree with the Eighth Circuit, as does the IRS Office of Chief Counsel.12 The Tax Court continues to adhere to its position, however, except in cases appealable to the First, Eighth, and Ninth Circuit Courts of Appeal.13 Restricting judicial review to the administrative record in CDP cases harms taxpayers, especially those who cannot afford representation or assistance during administrative proceedings. The divergence in the courts with respect to the appropriate scope of review when the underlying tax is not at issue creates uncertainty for taxpayers and consumes administrative and judicial resources. Therefore, the National Taxpayer Advocate recommends that Congress amend Internal Revenue Code (IRC) § 6330 to provide that the scope and standard of review in CDP cases is de novo whether or not the underlying tax liability is at issue. EXAMPLE 1 In response to a final notice of intent to levy, a taxpayer requests a CDP hearing. At the hearing, the taxpayer claims that because she suffers from a medical condition requiring medication, a levy would leave her unable to pay for the medication she needs and still meet basic living expenses. However, the taxpayer, who is unrepresented, does not provide evidence to substantiate her medical condition and the cost of treatment. The Appeals Officer sustains the proposed levy, and the taxpayer petitions the Tax Court for a review of the Appeals Officer’s determination. At trial, the taxpayer retains a representative, who submits documentation that demonstrates the taxpayer suffers from a medical condition and substantiates the cost of treatment. Any appeal of the Tax Court’s decision will be heard by the Court of Appeals for the Second Circuit. The Tax Court admits into evidence the additional information. If an appeal of the Tax Court’s decision would be heard by the First, Eighth, or Ninth Circuits, the Tax Court would not have admitted the additional information into evidence and would be unable to consider it in reaching its decision in the case. EXAMPLE 2 During a CDP hearing, a taxpayer, who is a construction worker with the equivalent of an eighth grade education and for whom English is a second language, submits a Form 433-A, Collection Information Statement, which lists his assets, liabilities, income, and expenses in support of his proposed offer in compromise (OIC). The Appeals Officer refuses to consider some of the documentation the taxpayer 9 H.R. Conf. Rep. No. 105-599, 105th Cong. 2d Sess. Part 2, at 266 (1998). 10 Robinette v. Comm’r, 123 T.C. 85 (2004), rev’d 439 F.3d 455 (8th Cir. 2006). 11 Robinette v. Comm’r, 439 F.3d 455 (8th Cir. 2006) rev’g 123 T.C. 85 (2004). 12 Murphy v. Comm’r, 469 F.3d 27 (1st Cir. 2006) aff’g 125 T.C. 301 (2005); Keller v. Comm’r, 568 F.3d 710 (9th Cir. 2009) aff’g in part T.C. Memo. 2006-166; Chief Counsel Notice CC-2014-002 (May 5, 2014). 13 See Golsen v. Comm’r, 54 T.C. 742, 757 (1970), aff’d 445 F.2d 985 (10th Cir. 1971), discussed below. Taxpayer Advocate Service — 2016 Annual Report to Congress — Volume One 365 Most Serious Legislative Most Litigated Case Advocacy Appendices Problems Recommendations Issues submits in support of his claimed income and expenses because the documents are handwritten, torn, and ungrammatical. At the conclusion of a CDP hearing, the Appeals Officer sustains the rejection of a taxpayer’s OIC. The Tax Court, applying an abuse of discretion standard, upholds the Appeals Officer’s determination even though the judge reviewing the case would have evaluated the documentation differently, taking into account the taxpayer’s occupation, level of education, and English language skills. RECOMMENDATION The National Taxpayer Advocate recommends that Congress amend IRC § 6330 to specify that the standard and scope of review in Tax Court determinations under IRC § 6330, including the verification required by IRC § 6330(c)(1), is de novo whether or not the underlying liability is at issue. PRESENT LAW Background The enactment of IRC §§ 6320 and 6330 as part of RRA 98 represented a profound departure from then-current tax collection procedures.14 The rules for reviewing a tax deficiency as well as the rules for reviewing IRS collection action provide context for those changes. Standard and Scope of Review in Deficiency Proceedings Prior to 1924, taxpayers had no independent forum in which to contest, on a prepayment basis, the IRS’s determination of a deficiency in tax.15 A taxpayer who disagreed with the IRS’s determination could only pay the tax and then seek a refund in a federal district court or in the U.S. Court of Claims.16 Congress remedied this situation in 1924 by creating the Board of Tax Appeals (BTA), the predecessor to the U.S. Tax Court, as an independent agency of the executive branch.17 Taxpayers could request BTA review of the IRS’s final deficiency determinations. Proceedings before the Board were conducted as follows: When a taxpayer brings his case before the Board he proceeds by trial de novo. The record of the case made in the Internal Revenue Bureau is not before the Board except in so far as it may be properly placed in evidence by the taxpayer or by the Commissioner.