CDPH Hearing Issues Gone Bad #2
CDPH Hearing Issues Gone Bad #2
26 U.S.C. § 6330(e) provides that as soon as a Collection Due Process Hearing (CDPH) is timely requested "the levy actions which are the subject of the requested hearing shall be suspended for the period during which such hearing, and appeals therein, are pending " This provision renders the request for a Collection Due Process Hearing (CDPH) a highly effective way to stop an IRS levy on a bank account or paycheck. I have seen the IRS fax a release of levy to an employer in as little as two days subsequent to CDPH hearing request being sent allowing the employee to never miss a full paycheck. It is my contention that almost anyone could stop an IRS levy by timely requesting a CDPH hearing as provided in 26 U.S.C. § 6330(b)(1).
However, most us would not be able to keep IRS collection activity suspended without some help. There are a lot of delays before the hearing is held and while appeals are pending. During these delays you will be able to retrieve whatever money you had in the bank when the Notice of Levy showed up from the IRS. You will also be receiving full paychecks during those delays; eventually, the end of the line will come and the IRS will move forward with collection activities as they were before the hearing was requested. When that happens you will be right back where you started; facing collection activity by the IRS. It is because of this harsh reality that I posted nine free videos, 4-10 minutes in length at www.irsterminator.com discussing strategies I have come up with that make forcing the IRS to suspend collection activities permanently a very real possibility.
As I see it, winning a CDPH hearing will involve two things: 1) Taking positive, strategic action designed to prevail in the hearing as I discuss in the videos mentioned above; 2) Avoiding raising issues that would cause you to lose the hearing. Avoiding losing issues is a matter of seeing what other people have tried in the past and building off their experience.
Rohner v. U.S., 2003.NOH.0000145< http://www.versuslaw.com> (N.D.Ohio 2003) is the case that I will address in part in this article. Rohner lost his Collection Due Process hearing and appealed to the Federal District Court. I was able to find his case by searching the District Court data base at www.versuslaw.com. I made an hour and forty minute video about how to use Versuslaw to do research and that video is available here.
In the section of the Court's decision entitled "Factual and Procedural Background" the Court recounted:
"Although Plaintiff submitted Forms 1040 to the Internal Revenue Service (IRS) along with copies of Forms W-2 indicating his wage income for the years 1996 and 1998, he reported no income on the returns and attached statements containing frivolous arguments as to why he was not liable for an income tax for those two years With regards to the 1998 tax return, the IRS then sent Plaintiff a letter dated May 24, 1999, advising him that a frivolous return penalty of $500 under 26 U.S.C. § 6702 would be assessed against him unless he corrected his position within 30 days Plaintiff failed to correct the Form 1040 and the IRS assessed § 6702 penalty against him on September 13, 1999, with respect to the 1998 Form 1040 The IRS also accessed Plaintiff a § 6702 penalty on November 13, 2000, with respect to the 1996 Form 1040, because he submitted a Form 1040 for tax year 1996 showing no income with an attached statement containing frivolous arguments on July 21, 2000."
So, it sounds like Rohner may have been using an early Cracking the Code strategy; or possibly, something taught by Irwin Schiff. He appears to be using the hearing to get the hearing officer to agree with his position on why he had no taxable income and to get out of paying frivolous return penalties. The IRS sent Rohner a Notice of Intent to Levy that informed him of his right to a CDPH hearing and he requested the hearing. After losing in the CDPH hearing, Rohner lost on appeal to the Federal District Court:
1) According to the published decision, the Court said that Rohner contended that he had the right to record the collection due process hearing or have a court reporter transcribe the hearing. The Court held that Rohner misstated the law and held that he did not have the right to have the collection due process hearing recorded or to have a court reporter transcribe the hearing.
2) According to the published decision, the Court said that Rohner complained that the hearing officer would not give him a separate hearing with respect to the frivolous return penalties for each of the two different tax years. The Court held that collection due process hearings consist of more than just the face to face meeting between the taxpayer and the officer. It held that written communications, telephone conversations and face-to-face meetings all suffice for an adequate hearing.
The Court ended up holding that the Internal Revenue Service's administrative determination was to be upheld. In the videos at www.irsterminator.com I discuss how to use Rohner's losing issues above to your own advantage. Check them out.