Paragraph 1. The authority citation for part 301
continues to read, in part, as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 301.6330-1 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.
§301.6330-1
Notice and opportunity for hearing prior to levy.
* * * * *
(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 proposed levy.
(E) The reason or reasons why the taxpayer disagrees
with the proposed levy.
(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 date of the CDP Notice, the taxpayer foregoes
the right to a CDP hearing under section 6330 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
proposed levy 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 6330(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 6330(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
proposed levy for the 1998 income tax liability assessed
against individual A. Appeals employee B previously
conducted a CDP hearing regarding a NFTL filed with
respect to 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 6320 CDP hearing, employee B may
conduct the CDP hearing under section 6330 involving the
proposed levy for the 1998 income tax liability.
Example 2.
Individual C timely requests a CDP hearing concerning a
proposed levy for 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
6330 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 proposed levy for 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 proposed levy for 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 proposed levy 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
proposed levy, 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 6320 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 withhold the proposed levy or future
collection action in circumstances that will facilitate
the collection of the tax liability, 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
proposed collection action, 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
6320 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 6320 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 CDP Notice 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 6330 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 levy.
(E) The reason or reasons why the taxpayer disagrees
with the proposed levy.
(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
6330?
A-I7. 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. 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
6320. For a CDP Notice issued under section 6320, 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.
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
must request the hearing within the one-year period
commencing the day after the date of the CDP Notice issued
under section 6330.
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 date of the
CDP Notice issued under section 6330?
A-I11. If the taxpayer does not request an equivalent
hearing with Appeals within the one-year period commencing
the day after the date of the CDP Notice issued under
section 6330, 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.
60827)