Paragraph 1. The authority citation for part 301
continues to read, in part, as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 301.6320-1 is amended as follows:
1. Paragraph (c)(2) A-C1, Q&A-C6 and A-C7 are
revised.
2. Paragraph (d)(2) A-D4 and A-D7 are revised.
3. Paragraph (d)(2) Q&A-D8 is added.
4. Paragraph (d)(3) is added.
5. Paragraph (e)(1) is revised.
6. Paragraph (e)(3) A-E2, A-E6, A-E7 and A-E11 are
revised.
7. Paragraph (f)(1) is revised.
8. Paragraph (f)(2) A-F1 is revised.
9. Paragraph (f)(2) Q&A-F3 is removed.
10. Paragraph (f)(2) Q&A-F5 is revised and
redesignated Q&A-F3.
11. Paragraph (f)(2) Q&A-F4 is revised.
12. Paragraph (g)(3) Example
1 is revised.
13. Paragraph (h)(2) Q&A-H2 is revised.
14. Paragraph (i)(2) Q-I5 is revised and redesignated
Q-I6.
15. Paragraph (i)(2) A-I5 is redesignated A-I6.
16. Paragraph (i)(2) Q&A-I1 through Q&A-I4 are
redesignated Q&A-I2 through Q&A-I5.
17. Paragraph (i)(2) Q&A-I1 and Q&A-I7 through
Q&A-I11 are added.
18. Paragraph (j) is revised.
§301.6320-1
Notice and opportunity for hearing upon filing of
notice of Federal tax lien.
* * * * *
(c) * * *
(2) * * *
A-C1. (i) The taxpayer must make a request in writing
for a CDP hearing. The request for a CDP hearing shall
include the information and signature specified in
A-C1(ii) of this paragraph (c)(2). See A-D7 and A-D8 of
paragraph (d)(2).
(ii) The written request for a CDP hearing must be
dated and must include the following:
(A) The taxpayer’s name, address, daytime telephone
number (if any), and taxpayer identification number (e.g.,
SSN, ITIN or EIN).
(B) The type of tax involved.
(C) The tax period at issue.
(D) A statement that the taxpayer requests a hearing
with Appeals concerning the filing of the NFTL.
(E) The reason or reasons why the taxpayer disagrees
with the filing of the NFTL.
(F) The signature of the taxpayer or the taxpayer’s
authorized representative.
(iii) If the IRS receives a timely written request
for CDP hearing that does not satisfy the requirements
set forth in A-C1(ii) of this paragraph (c)(2), the IRS
will make a reasonable attempt to contact the taxpayer
and request that the taxpayer comply with the
unsatisfied requirements. The taxpayer must perfect any
timely written request for a CDP hearing that does not
satisfy the requirements set forth in A-C1(ii) of this
paragraph (c)(2) within a reasonable period of time
after a request from the IRS.
(iv) Taxpayers are encouraged to use Form 12153, “Request
for a Collection Due Process Hearing,” in
requesting a CDP hearing so that the request can be
readily identified and forwarded to Appeals. Taxpayers
may obtain a copy of Form 12153 by contacting the IRS
office that issued the CDP Notice, by downloading a copy
from the IRS Internet site, www.irs.gov/pub/irs-pdf/f12153.pdf,
or by calling, toll-free, 1-800-829-3676.
(v) The taxpayer must affirm any timely written
request for a CDP hearing which is signed or alleged to
have been signed on the taxpayer’s behalf by the
taxpayer’s spouse or other unauthorized representative
by filing, within a reasonable period of time after a
request from the IRS, a signed, written affirmation that
the request was originally submitted on the taxpayer’s
behalf. If the affirmation is filed within a reasonable
period of time after a request, the timely CDP hearing
request will be considered timely with respect to the
non-signing taxpayer. If the affirmation is not filed
within a reasonable period of time after a request, the
CDP hearing request will be denied with respect to the
non-signing taxpayer.
* * * * *
Q-C6. Where must the written request for a CDP
hearing be sent?
A-C6. The written request for a CDP hearing must be
sent, or hand delivered (if permitted), to the IRS
office and address as directed on the CDP Notice. If the
address of that office does not appear on the CDP
Notice, the taxpayer should obtain the address of the
office to which the written request should be sent or
hand delivered by calling, toll-free, 1-800-829-1040 and
providing the taxpayer’s identification number (e.g.,
SSN, ITIN or EIN).
* * * * *
A-C7. If the taxpayer does not request a CDP hearing
in writing within the 30-day period that commences on
the day after the end of the five-business-day
notification period, the taxpayer foregoes the right to
a CDP hearing under section 6320 with respect to the
unpaid tax and tax periods shown on the CDP Notice. A
written request submitted within the 30-day period that
does not satisfy the requirements set forth in
A-C1(ii)(A), (B), (C), (D) or (F) of this paragraph
(c)(2) is considered timely if the request is perfected
within a reasonable period of time pursuant to A-C1(iii)
of this paragraph (c)(2). If the request for CDP hearing
is untimely, either because the request was not
submitted within the 30-day period or not perfected
within the reasonable period provided, the taxpayer will
be notified of the untimeliness of the request and
offered an equivalent hearing. In such cases, the
taxpayer may obtain an equivalent hearing without
submitting an additional request. See paragraph (i) of
this section.
* * * * *
(d) * * *
(2) * * *
A-D4. Prior involvement by an Appeals officer or
employee includes participation or involvement in a
matter (other than a CDP hearing held under either
section 6320 or section 6330) that the taxpayer may have
had with respect to the tax and tax period shown on the
CDP Notice. Prior involvement exists only when the
taxpayer, the tax and the tax period at issue in the CDP
hearing also were at issue in the prior non-CDP matter,
and the Appeals officer or employee actually
participated in the prior matter.
* * * * *
A-D7. Except as provided in A-D8 of this paragraph
(d)(2), a taxpayer who presents in the CDP hearing
request relevant, non-frivolous reasons for disagreement
with the NFTL filing will ordinarily be offered an
opportunity for a face-to-face conference at the Appeals
office closest to taxpayer’s residence. A business
taxpayer will ordinarily be offered an opportunity for a
face-to-face conference at the Appeals office closest to
the taxpayer’s principal place of business. If that is
not satisfactory to the taxpayer, the taxpayer will be
given an opportunity for a hearing by telephone or by
correspondence. In all cases, the Appeals officer or
employee will review the case file, as described in A-F4
of paragraph (f)(2). If no face-to-face or telephonic
conference is held, or other oral communication takes
place, review of the documents in the case file, as
described in A-F4 of paragraph (f)(2), will constitute
the CDP hearing for purposes of section 6320(b).
Q-D8. In what circumstances will a face-to-face CDP
conference not be granted?
A-D8. A taxpayer is not entitled to a face-to-face
CDP conference at a location other than as provided in
A-D7 of this paragraph (d)(2) and this A-D8. If all
Appeals officers or employees at the location provided
for in A-D7 of this paragraph (d)(2) have had prior
involvement with the taxpayer as provided in A-D4 of
this paragraph (d)(2), the taxpayer will not be offered
a face-to-face conference at that location, unless the
taxpayer elects to waive the requirement of section
6320(b)(3). The taxpayer will be offered a face-to-face
conference at another Appeals office if Appeals would
have offered the taxpayer a face-to-face conference at
the location provided in A-D7 of this paragraph (d)(2),
but for the disqualification of all Appeals officers or
employees at that location. A face-to-face CDP
conference concerning a taxpayer’s underlying
liability will not be granted if the request for a
hearing or other taxpayer communication indicates that
the taxpayer wishes only to raise irrelevant or
frivolous issues concerning that liability. A
face-to-face CDP conference concerning a collection
alternative, such as an installment agreement or an
offer to compromise liability, will not be granted
unless other taxpayers would be eligible for the
alternative in similar circumstances. For example,
because the IRS does not consider offers to compromise
from taxpayers who have not filed required returns or
have not made certain required deposits of tax, as set
forth in Form 656, “Offer
in Compromise,” no face-to-face conference
will be granted to a taxpayer who wishes to make an
offer to compromise but has not fulfilled those
obligations. Appeals in its discretion, however, may
grant a face-to-face conference if Appeals determines
that a face-to-face conference is appropriate to explain
to the taxpayer the requirements for becoming eligible
for a collection alternative. In all cases, a taxpayer
will be given an opportunity to demonstrate eligibility
for a collection alternative and to become eligible for
a collection alternative, in order to obtain a
face-to-face conference. For purposes of determining
whether a face-to-face conference will be granted, the
determination of a taxpayer’s eligibility for a
collection alternative is made without regard to the
taxpayer’s ability to pay the unpaid tax. A
face-to-face conference need not be granted if the
taxpayer does not provide the required information set
forth in A-C1(ii)(E) of paragraph (c)(2). See also
A-C1(iii) of paragraph (c)(2).
(3) Examples.
The following examples illustrate the principles of this
paragraph (d):
Example 1.
Individual A timely requests a CDP hearing concerning a
NFTL filed with respect to the 1998 income tax liability
assessed against individual A. Appeals employee B
previously conducted a CDP hearing regarding a proposed
levy for individual A’s 1998 income tax liability.
Because employee B’s only prior involvement with
individual A’s 1998 income tax liability was in
connection with a section 6330 CDP hearing, employee B
may conduct the CDP hearing under section 6320 involving
the NFTL filed for the 1998 income tax liability.
Example 2.
Individual C timely requests a CDP hearing concerning a
NFTL filed with respect to the 1998 income tax liability
assessed against individual C. Appeals employee D
previously conducted a Collection Appeals Program (CAP)
hearing regarding a NFTL filed with respect to
individual C’s 1998 income tax liability. Because
employee D’s prior involvement with individual C’s
1998 income tax liability was in connection with a
non-CDP hearing, employee D may not conduct the CDP
hearing under section 6320 unless individual C waives
the requirement that the hearing will be conducted by an
Appeals officer or employee who has had no prior
involvement with respect to individual C’s 1998 income
tax liability.
Example 3.
Same facts as in Example 2,
except that the prior CAP hearing only involved
individual C’s 1997 income tax liability and
employment tax liabilities for 1998 reported on Form
941, “Employer’s
Quarterly Federal Tax Return.” Employee D
would not be considered to have prior involvement
because the prior CAP hearing in which she participated
did not involve individual C’s 1998 income tax
liability.
Example 4.
Appeals employee F is assigned to a CDP hearing
concerning a NFTL filed with respect to a trust fund
recovery penalty (TFRP) assessed pursuant to section
6672 against individual E. Appeals employee F
participated in a prior CAP hearing involving individual
E’s 1999 income tax liability, and participated in a
CAP hearing involving the employment taxes of business
entity X, which incurred the employment tax liability to
which the TFRP assessed against individual E relates.
Appeals employee F would not be considered to have prior
involvement because the prior CAP hearings in which he
participated did not directly involve the TFRP assessed
against individual E.
Example 5.
Appeals employee G is assigned to a CDP hearing
concerning a NFTL filed with respect to a TFRP assessed
pursuant to section 6672 against individual H. In
preparing for the CDP hearing, Appeals employee G
reviews the Appeals case file concerning the prior CAP
hearing involving the TFRP assessed pursuant to section
6672 against individual H. Appeals employee G is not
deemed to have participated in the previous CAP hearing
involving the TFRP assessed against individual H by such
review.
(e) Matters considered at
CDP hearing—(1) In
general. Appeals will determine the
timeliness of any request for a CDP hearing that is made
by a taxpayer. Appeals has the authority to determine
the validity, sufficiency, and timeliness of any CDP
Notice given by the IRS and of any request for a CDP
hearing that is made by a taxpayer. Prior to issuance of
a determination, Appeals is required to obtain
verification from the IRS office collecting the tax that
the requirements of any applicable law or administrative
procedure with respect to the filing of the NFTL have
been met. The taxpayer may raise any relevant issue
relating to the unpaid tax at the hearing, including
appropriate spousal defenses, challenges to the
appropriateness of the NFTL filing, and offers of
collection alternatives. The taxpayer also may raise
challenges to the existence or amount of the underlying
liability, including a liability reported on a
self-filed return, for any tax period specified on the
CDP Notice if the taxpayer did not receive a statutory
notice of deficiency for that tax liability or did not
otherwise have an opportunity to dispute the tax
liability. Finally, the taxpayer may not raise an issue
that was raised and considered at a previous CDP hearing
under section 6330 or in any other previous
administrative or judicial proceeding if the taxpayer
participated meaningfully in such hearing or proceeding.
Taxpayers will be expected to provide all relevant
information requested by Appeals, including financial
statements, for its consideration of the facts and
issues involved in the hearing.
* * * * *
(3) * * *
A-E2. A taxpayer is entitled to challenge the
existence or amount of the underlying liability for any
tax period specified on the CDP Notice if the taxpayer
did not receive a statutory notice of deficiency for
such liability or did not otherwise have an opportunity
to dispute such liability. Receipt of a statutory notice
of deficiency for this purpose means receipt in time to
petition the Tax Court for a redetermination of the
deficiency determined in the notice of deficiency. An
opportunity to dispute the underlying liability includes
a prior opportunity for a conference with Appeals that
was offered either before or after the assessment of the
liability. An opportunity for a conference with Appeals
prior to the assessment of a tax subject to deficiency
procedures is not a prior opportunity for this purpose.
* * * * *
A-E6. Collection alternatives include, for example, a
proposal to withdraw the NFTL in circumstances that will
facilitate the collection of the tax liability,
subordination of the NFTL, discharge of the NFTL from
specific property, an installment agreement, an offer to
compromise, the posting of a bond, or the substitution
of other assets. A collection alternative is not
available unless the alternative would be available to
other taxpayers in similar circumstances. See A-D8 of
paragraph (d)(2).
* * * * *
A-E7. The taxpayer may raise appropriate spousal
defenses, challenges to the appropriateness of the NFTL
filing, and offers of collection alternatives. The
existence or amount of the underlying liability for any
tax period specified in the CDP Notice may be challenged
only if the taxpayer did not have a prior opportunity to
dispute the tax liability. If the taxpayer previously
received a CDP Notice under section 6330 with respect to
the same tax and tax period and did not request a CDP
hearing with respect to that earlier CDP Notice, the
taxpayer had a prior opportunity to dispute the
existence or amount of the underlying tax liability.
* * * * *
A-E11. No. An Appeals officer may consider the
existence and amount of the underlying tax liability as
a part of the CDP hearing only if the taxpayer did not
receive a statutory notice of deficiency for the tax
liability in question or otherwise have a prior
opportunity to dispute the tax liability. Similarly, an
Appeals officer may not consider any other issue if the
issue was raised and considered at a previous hearing
under section 6330 or in any other previous
administrative or judicial proceeding in which the
person seeking to raise the issue meaningfully
participated. In the Appeals officer’s sole
discretion, however, the Appeals officer may consider
the existence or amount of the underlying tax liability,
or such other precluded issues, at the same time as the
CDP hearing. Any determination, however, made by the
Appeals officer with respect to such a precluded issue
shall not be treated as part of the Notice of
Determination issued by the Appeals officer and will not
be subject to any judicial review. Because any decisions
made by the Appeals officer on such precluded issues are
not properly a part of the CDP hearing, such decisions
are not required to appear in the Notice of
Determination issued following the hearing. Even if a
decision concerning such precluded issues is referred to
in the Notice of Determination, it is not reviewable by
the Tax Court because the precluded issue is not
properly part of the CDP hearing.
* * * * *
(f) Judicial review of
Notice of Determination—(1) In
general. Unless the taxpayer provides the
IRS a written withdrawal of the request that Appeals
conduct a CDP hearing, Appeals is required to issue a
Notice of Determination in all cases where a taxpayer
has timely requested a CDP hearing. The taxpayer may
appeal such determinations made by Appeals within the
30-day period commencing the day after the date of the
Notice of Determination to the Tax Court.
(2) * * *
A-F1. Subject to the jurisdictional limitations
described in A-F2 of this paragraph (f)(2), the taxpayer
must, within the 30-day period commencing the day after
the date of the Notice of Determination, appeal the
determination by Appeals to the Tax Court.
* * * * *
Q-F3. What issue or issues may the taxpayer raise
before the Tax Court if the taxpayer disagrees with the
Notice of Determination?
A-F3. In seeking Tax Court review of a Notice of
Determination, the taxpayer can only ask the court to
consider an issue, including a challenge to the
underlying tax liability, that was properly raised in
the taxpayer’s CDP hearing. An issue is not properly
raised if the taxpayer fails to request consideration of
the issue by Appeals, or if consideration is requested
but the taxpayer fails to present to Appeals any
evidence with respect to that issue after being given a
reasonable opportunity to present such evidence.
Q-F4. What is the administrative record for purposes
of Tax Court review?
A-F4. The case file, including the taxpayer’s
request for hearing, any other written communications
and information from the taxpayer or the taxpayer’s
authorized representative submitted in connection with
the CDP hearing, notes made by an Appeals officer or
employee of any oral communications with the taxpayer or
the taxpayer’s authorized representative, memoranda
created by the Appeals officer or employee in connection
with the CDP hearing, and any other documents or
materials relied upon by the Appeals officer or employee
in making the determination under section 6330(c)(3),
will constitute the record in the Tax Court review of
the Notice of Determination issued by Appeals.
(g) * * *
(3) * * *
Example 1. The
period of limitation under section 6502 with respect to
the taxpayer’s tax period listed in the NFTL will
expire on August 1, 1999. The IRS sent a CDP Notice to
the taxpayer on April 30, 1999. The taxpayer timely
requested a CDP hearing. The IRS received this request
on May 15, 1999. Appeals sends the taxpayer its
determination on June 15, 1999. The taxpayer timely
seeks judicial review of that determination. The period
of limitation under section 6502 would be suspended from
May 15, 1999, until the determination resulting from
that hearing becomes final by expiration of the time for
seeking review or reconsideration before the Tax Court,
plus 90 days.
* * * * *
(h) * * *
(2) * * *
Q-H2. Is a decision of Appeals resulting from a
retained jurisdiction hearing appealable to the Tax
Court?
A-H2. No. As discussed in A-H1, a taxpayer is
entitled to only one CDP hearing under section 6320 with
respect to the tax and tax period or periods specified
in the CDP Notice. Only determinations resulting from
CDP hearings are appealable to the Tax Court.
(i) * * *
(2) * * *
Q-I1. What must a taxpayer do to obtain an equivalent
hearing?
A-I1. (i) A request for an equivalent hearing must be
made in writing. A written request in any form that
requests an equivalent hearing will be acceptable if it
includes the information and signature required in
A-I1(ii) of this paragraph (i)(2).
(ii) The request must be dated and must include the
following:
(A) The taxpayer’s name, address, daytime telephone
number (if any), and taxpayer identification number (e.g.,
SSN, ITIN or EIN).
(B) The type of tax involved.
(C) The tax period at issue.
(D) A statement that the taxpayer is requesting an
equivalent hearing with Appeals concerning the filing of
the NFTL.
(E) The reason or reasons why the taxpayer disagrees
with the filing of the NFTL.
(F) The signature of the taxpayer or the taxpayer’s
authorized representative.
(iii) The taxpayer must perfect any timely written
request for an equivalent hearing that does not satisfy
the requirements set forth in A-I1(ii) of this paragraph
(i)(2) within a reasonable period of time after a
request from the IRS. If the requirements are not
satisfied within a reasonable period of time, the
taxpayer’s equivalent hearing request will be denied.
(iv) The taxpayer must affirm any timely written
request for an equivalent hearing that is signed or
alleged to have been signed on the taxpayer’s behalf
by the taxpayer’s spouse or other unauthorized
representative, and that otherwise meets the
requirements set forth in A-I1(ii) of this paragraph (i)(2),
by filing, within a reasonable period of time after a
request from the IRS, a signed written affirmation that
the request was originally submitted on the taxpayer’s
behalf. If the affirmation is filed within a reasonable
period of time after a request, the timely equivalent
hearing request will be considered timely with respect
to the non-signing taxpayer. If the affirmation is not
filed within a reasonable period of time, the equivalent
hearing request will be denied with respect to the
non-signing taxpayer.
* * * * *
Q-I6. Will a taxpayer be able to obtain Tax Court
review of a decision made by Appeals with respect to an
equivalent hearing?
* * * * *
Q-I7. When must a taxpayer request an equivalent
hearing with respect to a CDP Notice issued under
section 6320?
A-I7. A taxpayer must submit a written request for an
equivalent hearing within the one-year period commencing
the day after the end of the five-business-day period
following the filing of the NFTL. This period is
slightly different from the period for submitting a
written request for an equivalent hearing with respect
to a CDP Notice issued under section 6330. For a CDP
Notice issued under section 6330, a taxpayer must submit
a written request for an equivalent hearing within the
one-year period commencing the day after the date of the
CDP Notice issued under section 6330.
Q-I8. How will the timeliness of a taxpayer’s
written request for an equivalent hearing be determined?
A-I8. The rules and regulations under section 7502
and section 7503 will apply to determine the timeliness
of the taxpayer’s request for an equivalent hearing,
if properly transmitted and addressed as provided in
A-I10 of this paragraph (i)(2).
Q-I9. Is the one-year period within which a taxpayer
must make a request for an equivalent hearing extended
because the taxpayer resides outside the United States?
A-I9. No. All taxpayers who want an equivalent
hearing concerning the filing of the NFTL must request
the hearing within the one-year period commencing the
day after the end of the five-business-day period
following the filing of the NFTL.
Q-I10. Where must the written request for an
equivalent hearing be sent?
A-I10. The written request for an equivalent hearing
must be sent, or hand delivered (if permitted), to the
IRS office and address as directed on the CDP Notice. If
the address of the issuing office does not appear on the
CDP Notice, the taxpayer should obtain the address of
the office to which the written request should be sent
or hand delivered by calling, toll-free, 1-800-829-1040
and providing the taxpayer’s identification number (e.g.,
SSN, ITIN or EIN).
Q-I11. What will happen if the taxpayer does not
request an equivalent hearing in writing within the
one-year period commencing the day after the end of the
five-business-day period following the filing of the
NFTL?
A-I11. If the taxpayer does not request an equivalent
hearing with Appeals within the one-year period
commencing the day after the end of the
five-business-day period following the filing of the
NFTL, the taxpayer foregoes the right to an equivalent
hearing with respect to the unpaid tax and tax periods
shown on the CDP Notice. A written request submitted
within the one-year period that does not satisfy the
requirements set forth in A-I1(ii) of this paragraph (i)(2)
is considered timely if the request is perfected within
a reasonable period of time pursuant to A-I1(iii) of
this paragraph (i)(2). If a request for equivalent
hearing is untimely, either because the request was not
submitted within the one-year period or not perfected
within the reasonable period provided, the equivalent
hearing request will be denied. The taxpayer, however,
may seek reconsideration by the IRS office collecting
the tax, assistance from the National Taxpayer Advocate,
or an administrative hearing before Appeals under its
Collection Appeals Program or any successor program.
(j) Effective date.
This section is applicable on or after November 16, 2006
with respect to requests made for CDP hearings or
equivalent hearings on or after November 16, 2006.
Mark E. Matthews,
Deputy Commissioner for
Services and Enforcement.
Approved October 6, 2006.
Eric Solomon,
Acting Deputy Assistant
Secretary
of the Treasury (Tax Policy).
Note
(Filed by the Office of the Federal Register on
October 16, 2006, 8:45 a.m., and published in the
issue of the Federal Register for October 17, 2006, 71
F.R. 60835)