June 30, 2011

Your Tax Lien And Credit Scores

Current California law provides that if the Franchise Tax Board issues a levy or files a lien in error, the FTB must correct it. The FTB is in error if it issues the levy or files the lien prematurely and does not follow its own administrative procedures. The FTB is also in error if you have an installment agreement in good standing with it to satisfy the tax liability for which it is issuing the levy or filing the lien, unless the levy is allowed by agreement.

Under these circumstances, the Franchise Tax Board will return your property if they took it. If they filed a lien, they will send a copy of the notice of withdrawal to you. You may request that the FTB send a notice of release to specified third parties

A new bill pending in the California capital – Sacramento - would authorize the Franchise Tax Board (FTB) to withdraw a Notice of State Tax Lien upon payment of the underlying debt in full. According to the author’s office, the purpose of this bill is to allow the department to issue a State Tax Lien Withdrawal upon payment in full to improve the credit history of taxpayers. This bill would become effective January 1, 2012, and would apply to State Tax Lien Withdrawals issued on or after that date, irrespective of the date the State Tax Lien was originally issued.

FTB uses two documents to release a filed State Lien:

1. FTB will issue a “Notice of Release of State Tax Lien” (State Release) when the tax liability is satisfied or has become legally unenforceable. FTB also has the discretion to issue this notice in instances where it determines that releasing a lien would facilitate the collection of the tax liability or the release would be in the best interest of the state and the taxpayer.

2. FTB can issue a “Notice of Release of State Tax Lien Filed in Error” (State FIE) if FTB determines any of the following:

• A State Lien was filed in error,

• A State Lien was filed contrary to administrative procedures,

• A State Lien was filed after a taxpayer enters into an installment payment agreement to satisfy the tax liability for which the State Lien was issued, unless the agreement states otherwise.

Upon request of the taxpayer, FTB is required to mail a copy of the State FIE to the major credit reporting companies in the county where FTB filed the State Lien. See Appendix 1 for a comparison chart of Federal and California authority for lien releases versus withdrawals.


A pending bill would give the FTB the authority to do the following if a liability represented by a State Tax Lien, including penalties and interest has been paid in full:

• Issue a Notice of Withdrawal at the same office in which the Notice of State Tax Lien was filed.

• Provide a copy of the Notice of Withdrawal to the taxpayer.

• Notify credit reporting agencies, financial institutions, and certain other creditors of the Notice of Withdrawal upon written request of the taxpayer. As a result of the Notice of Withdrawal, the State Tax Lien would be removed from the credit report of the taxpayer as though it never existed.

For professional tax help, call Los Angeles attorney Mitchell A. Port at (310) 559-5259.

June 23, 2011

Fifth Circuit Court Of Appeals Ruled That A 90-Day Letter Does Not Start If Mail Is Undeliverable

Pamela R. Terrell appealed the Tax Court’s order dismissing her petition for lack of jurisdiction. The Tax Court found it lacked jurisdiction because Terrell filed her petition more than ninety days after the Commissioner of Internal Revenue (“Commissioner”) sent her a Notice of Final Determination (“Notice”). Terrell argues that because the Commissioner did not send the Notice to her “last known address,” as required by I.R.C. § 6015(e), this Court should find her petition timely as it was filed within ninety days of the Internal Revenue Service (“IRS”) mailing the Notice to her correct address.

The IRS was on notice that its address on file for Terrell was incorrect, because the United States Postal Service (“USPS”) had already returned three of the IRS’s prior mailings to Terrell as undeliverable. The IRS thus had a duty to exercise reasonable diligence to search for her correct address, but failed to do so before sending the Notice. The Notice sent on April 6, 2007 was, therefore, not sent to her “last known address,” and became null and void when it was subsequently returned as undeliverable. Terrell’s ninety days began to run only after the IRS re-sent the Notice to her correct address on May 14, 2007. Because Terrell filed her petition with the Tax Court within ninety days of the May 14th Notice, her petition was timely. Accordingly, the Fifth Circuit Court of Appeals REVERSES the ruling of the Tax Court and REMANDS it for a determination of the petition’s merits.

Terrell argues that the IRS did not mail the Notice to her “last known address,” because the IRS failed to conduct a “reasonably diligent” search for her address before mailing the Notice. She asserts that her ninety-day petition period did not begin until she received the re-sent Notice, making her petition timely and giving the Tax Court jurisdiction.

The Court's inquiry into these claims proceeds in two parts. First, the Court must determine whether the IRS failed to exercise “reasonable diligence” in locating Terrell’s correct address and thereby failed to send the Notice to her “last known address” as required by § 6015(e). Second, if the Court finds that the IRS failed to exercise “reasonable diligence” and the Notice was therefore not sent to her “last known address,” the Court must determine the date on which Terrell’s petition period started in order to assess whether the Tax Court had jurisdiction over her petition.

A. Validity of the April 6, 2007 Notice

An individual who requests Innocent Spouse Relief “may petition the Tax Court (and the Tax Court shall have jurisdiction) to determine the appropriate relief available . . . not later than the close of the 90th day after” the date the IRS “mails, by certified or registered mail to the taxpayer’s last known address, notice of the Secretary’s final determination of relief available to the individual.” I.R.C. § 6015(e)(1)(A). Although there is a dearth of cases interpreting § 6015, the Tax Court and the parties correctly cite to analogous cases from IRC §§ 6212 and 6213 concerning the IRS sending tax deficiency notices. 2 See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479 (1992) (“[I]dentical termswithin an Act bear the same meaning.”). In both § 6015 and § 6213, the Tax Court has no jurisdiction over a taxpayer’s petition if it is not filed before the deadline.

In order to have jurisdiction to hear a taxpayer’s petition, § 6015(e) requires that the taxpayer request review within ninety days of the IRS sending notice to the taxpayer’s “last known address.” I.R.C. § 6015(e)(1)(A). The Tax Court’s jurisdiction is a question of law that we review de novo. Ferguson v. Comm’r, 568 F.3d 498, 502 (5th Cir. 2009). However, whether the IRS properly sent notice to the taxpayer’s “last known address,” thereby starting the ninety day response period, is a question of fact that we review for clear error. Ward v. Comm’r, 907 F.2d 517, 521 (5th Cir. 1990).

“‘[L]ast known address’ is a term of art and refers to that address which, in light of all relevant circumstances, the IRS reasonably may consider to be the address of the taxpayer at the time the notice of deficiency is mailed.” Mulder v. Comm’r, 855 F.2d 208, 211 (5th Cir. 1988) (emphasis added) (citing Brown v. Comm’r, 78 T.C. 215, 218 (1982)). This Court has interpreted Mulder as standing for the rule that “absent a subsequent, clear and concise notification of an address change, the IRS is entitled to consider the address on the taxpayer’s most recently filed return as the taxpayer’s ‘last known address.’” Pomeroy v. United States, 864 F.2d 1191, 1194 (5th Cir. 1989) (citations omitted). This rule, however, does not dispense with the requirement that the IRS must use “reasonable diligence” to determine the taxpayer’s address in light of all relevant circumstances. When the IRS knows or should know at the time of mailing that the taxpayer’s address on file may no longer be valid because of previously returned letters, “reasonable diligence” requires further investigation. See Mulder, 855 F.2d at 212 (finding no “due diligence” where “two letters posted shortly before the notice . . . were returned undelivered” and the notice itself was neither delivered nor returned); see also Pomeroy, 864 F.2d at 1195 (“Given that the two returned letters put the IRS on notice that the taxpayer had changed his address, the IRS in Mulder should have done further investigation prior to sending the deficiency notice . . . .”); Ward, 907 F.2d at 522 (“[W]hen the IRS was aware before mailing the deficiency notice that the taxpayer had moved, the Internal Revenue Service was required to exercise greater diligence . . . .”); Follum v. Comm’r, 128 F.3d 118, 119–120 (2d Cir. 1997) (“The Commissioner has an obligation to exercise reasonable diligence to ascertain the taxpayer’s correct address if prior to mailing the deficiency notice she has become aware that the address last known to the agency may be incorrect.”).

Here, the Tax Court clearly erred in finding that the IRS exercised reasonable diligence. The proper inquiry for reasonable diligence examines the facts the IRS knew or should have known at the time it sent the Notice. The Tax Court instead focused on the fact that after the IRS sent the Notice and it was returned as undeliverable, it then checked its database and found an updated address from Terrell’s recently filed tax return. But when the IRS sent the Notice on April 6, it should have already known that Terrell’s address on file was incorrect because three separate mailings had been returned as undeliverable. Although the IRS had not received “clear and concise notification” that her address had changed, the IRS is not entitled to rely on a lack of notification once it is on notice that its address on file is incorrect. See Pomeroy, 864 F.2d at 1195.

Because the IRS failed to take any steps to determine Terrell’s correct address after receiving the returned mail and before mailing the Notice, we are compelled to find it did not exercise reasonable diligence. The IRS could have done a computer search through the DMV, contacted Terrell's employer, searched using Terrell’s social security number, or undertaken any number of actions that might have located the Dallas address. See Mulder, 855 F.2d at 212 (listing different actions taken in other cases that might constitute reasonable diligence). Because the IRS failed to exercise reasonable diligence, the IRS did not mail the Notice to Terrell’s “last known address.”

B. Effective Start Date of the Petition Period

Having determined that the Notice sent on April 6 was not sent to Terrell’s “last known address,” we must now determine the date on which Terrell’s ninety-day petition period began. The Commissioner urges this Court to adopt the “no prejudice” rule espoused by the First, Second, Third, Sixth, Ninth, and Eleventh Circuits. This rule holds that despite failing to mail the notice to the taxpayer’s “last known address,” the IRS satisfies the statutory notice requirement if the taxpayer actually receives the notice without delay prejudicial to her ability to petition the Tax Court. Under the “no prejudice” rule, the Commissioner asks us to apply the ninety days beginning from April 6, as Terrell still had ample time to respond after receiving the re-sent Notice.

Terrell urges this Court to adopt the position of the Fourth, Seventh, and D.C. Circuits. These courts have held that where the IRS fails to send the notice to the taxpayer’s “last known address,” but the taxpayer receives subsequent actual notice, the limitations period begins to run on the date the taxpayer receives actual notice. Under this rule, the ninety days would begin when Terrell received the Notice the IRS re-sent on May 14.

We decline, however, to weigh in on this circuit split. We hold that because the IRS not only failed to send the original Notice to Terrell’s “last known address,” but also had the Notice returned as undeliverable, the Notice as originally sent is null and void. As the Notice was returned undelivered to the IRS, we need not decide whether we would apply the “no prejudice” rule if the original Notice had actually reached Terrell.

Our decision is in line with the distinction adopted by the Ninth Circuit in Mulvania. In Mulvania, the IRS sent an erroneously addressed notice of deficiency to the taxpayer, which was eventually returned as “[n]ot deliverable as addressed.” Mulvania, 769 F.2d at 1377. While the mistake here was based on a typographical error, the notice was similarly not sent to the taxpayer’s “last known address.” Despite its adherence to the “no prejudice” rule, the Ninth Circuit distinguished situations where the original notice of deficiency is returned to the IRS as undeliverable. The Ninth Circuit held that this notice “became null and void when it was returned to the IRS.” Id. at 1379; see also Holof v. Comm’r, 872 F.2d 50, 56 (3d Cir. 1989) (citing agreement with the Mulvania “null and void” principle). The Mulvania court further distinguished this situation from one where “the notice was improperly addressed, but the postal authorities nonetheless delivered the letter to the taxpayer.” Mulvania, 769 F.2d at 1379.

This “null and void” principle does not conflict with the decisions of the other Circuits that have adopted the “no prejudice” rule. The cases the Commissioner cites from these Circuits all concern situations where, despite the IRS’s error, the original notice was actually delivered either to the taxpayer himself, the taxpayer’s Post Office box, or the taxpayer care of his accounting firm. See Sicari, 136 F.3d at 927 (USPS informed taxpayers of notice waiting at Post Office); Patmon & Young Pro. Corp., 55 F.3d at 216 (notice sent to Post Office box returned as “refused” and “unclaimed”); Borgman, 888 F.2d at 917 (notice automatically forwarded to the taxpayer by USPS); Pugsley, 749 F.2d at 692 (notice automatically forwarded to the taxpayer by USPS); Delman, 384 F.2d at 930 (notice sent to the taxpayer care of his accounting firm and duplicate sent to his attorney by regular mail, who promptly informed the taxpayer). Here, unlike these cases and like the taxpayer in Mulvania, Terrell never received the original Notice sent by the IRS. Therefore, the “no prejudice” rule is not directly applicable to the facts at hand. We reach only our narrow holding today and leave for another day the question of whether this Court will adopt the “no prejudice” rule or instead the “actual notice” rule.

The Commissioner expresses concern that failing to adopt the “no prejudice” rule creates a difficulty in determining the effective date of the Notice because of practical problems in discerning the date when the taxpayer received the Notice. Our decision does not, however, implicate this concern. After the original Notice was returned as undeliverable, the IRS subsequently mailed a second Notice on May 14 to the correct address. As the May 14 mailing was legally effective, we use the mailing date of this Notice as the beginning of the ninety day petition period rather than the day Terrell received the Notice. Because Terrell properly filed her petition within ninety days after May 14, the Tax Court was not without jurisdiction to hear the petition.


Given the IRS’s notice that Terrell’s address on file was no longer valid, it failed to exercise “reasonable diligence” in locating Terrell’s correct address before sending the original Notice. Therefore, the Notice was not sent to Terrell’s “last known address.” This, and the fact that the Notice was returned by USPS as undeliverable, rendered the original Notice null and void. The statutory petition period began only when the IRS re-sent the Notice to Terrell’s correct address on May 14, 2007. As Terrell filed her petition within ninety days of this date, the Tax Court erred in finding itself without jurisdiction to hear the merits of Terrell’s petition.


The Court's opinion was filed November 1, 2010 under case number 09-60822.

June 10, 2011

IRS Audits Pick Up In Los Angeles

The Los Angeles Times ran an interesting article on the 2011 tax audit season in California. My clients in San Diego, Ventura, Santa Barbara, San Francisco and Sacramento may have seen the article but the rest of us Californians ought to know about it too.

As a tax attorney in Los Angeles, I agree with the article's closing paragraph which said:

"Hire a professional: The tax code is complex and audits are frightening, unfamiliar territory for most taxpayers. Unless your audit is incredibly simple or involves a small amount of money, you'd be wise to hire a skilled professional to represent you."

Call lawyer Mitchell A. Port at (310) 559-5259 for tax help.

June 6, 2011

Roni Deutch - The Tax Lady - Resigns

“Tax Lady” Roni Deutch resigned from the California state Bar, reports the June issue of the California Bar Journal.

Last August, then-Attorney General Jerry Brown filed a large lawsuit against Deutch. Brown accused Deutch of swindling clients and orchestrating a “heartless scheme” in which she promises to reduce clients’ IRS tax debts “but instead preys on their vulnerability, taking large upfront payments but providing little or no help in lowering their tax bills.”

As a solo practitioner in Los Angeles, I don't provide legal services to help with IRS and Franchise Tax Board tax problems as part of a large franchise. My services are provided one-on-one with my clients. Call for tax help - (310) 559-5259.