Collection
Due Process - Regulations
[T.D. 8979, 67 FR 2561, Jan. 18, 2002, as amended by
T.D. 9290, 71 FR 60839, Oct. 17, 2006]:
§ 301.6320-1 Notice and opportunity
for hearing upon filing of notice of Federal tax lien.
(a) Notification —(1) In general. For a
notice of Federal tax lien (NFTL) filed on or after January 19,
1999, the Commissioner, or his or her delegate (the
Commissioner), will prescribe procedures to notify the person
described in section 6321 of the filing of a NFTL not more than
five business days after the date of any such filing. The
Collection Due Process Hearing Notice (CDP Notice) and other
notices given under section 6320 must be given in person, left
at the dwelling or usual place of business of such person, or
sent by certified or registered mail to such person's last known
address, not more than five business days after the day the NFTL
was filed. For further guidance regarding the definition of last
known address, see Sec. 301.6212–2.
(2) Questions and answers. The questions and answers
illustrate the provisions of this paragraph (a) as follows:
Q-A1. Who is the person entitled to notice under section
6320?
A-A1. Under section 6320(a)(1), notification of the filing of
a NFTL on or after January 19, 1999, is required to be given
only to the person described in section 6321 who is named on the
NFTL that is filed. The person described in section 6321 is the
person liable to pay the tax due after notice and demand who
refuses or neglects to pay the tax due (hereinafter, referred to
as the taxpayer).
Q-A2. When will the Internal Revenue Service (IRS) provide
the notice required under section 6320?
A-A2. The IRS will provide this notice within five business
days after the filing of the NFTL.
Q-A3. Will the IRS give notification to the taxpayer for each
tax period listed in a NFTL filed on or after January 19, 1999?
A-A3. Yes. A NFTL can be filed for more than one tax period.
The notification of the filing of a NFTL will specify each
unpaid tax and tax period listed in the NFTL.
Q-A4. Will the IRS give notification to the taxpayer of any
filing of a NFTL for the same tax period or periods at another
place of filing?
A-A4. Yes. The IRS will notify a taxpayer when a NFTL is
filed on or after January 19, 1999, for a tax period or periods
at any recording office.
Q-A5. Will the IRS give notification to the taxpayer if a
NFTL is filed on or after January 19, 1999, for a tax period or
periods for which a NFTL was filed in another recording office
prior to that date?
A-A5. Yes. The IRS will notify a taxpayer when each NFTL is
filed on or after January 19, 1999, for a tax period or periods
at any recording office.
Q-A6. Will the IRS give notification to the taxpayer when a
NFTL is refiled on or after January 19, 1999?
A-A6. No. Section 6320(a)(1) does not require the IRS to
notify the taxpayer of the refiling of a NFTL. A taxpayer may,
however, seek reconsideration by the IRS office that is
collecting the tax or refiling the NFTL, an administrative
hearing before the IRS Office of Appeals (Appeals), or
assistance from the National Taxpayer Advocate.
Q-A7. Will the IRS give notification to a known nominee of,
or a person holding property of, the taxpayer of the filing of
the NFTL?
A-A7. No. Such person is not the person described in section
6321 and, therefore, is not entitled to notice, but such persons
have other remedies. See A-B5 of paragraph (b)(2) of this
section.
Q-A8. Will the IRS give notification to the taxpayer when a
subsequent NFTL is filed for the same period or periods?
A-A8. Yes. If the IRS files an additional NFTL with respect
to the same tax period or periods for which an original NFTL was
filed, the IRS will notify the taxpayer when the subsequent NFTL
is filed. Not all such notices will, however, give rise to a
right to a CDP hearing (see paragraph (b) of this section).
Q-A9. How will notification under section 6320 be
accomplished?
A-A9. The IRS will notify the taxpayer by letter. Included
with this letter will be the additional information the IRS is
required to provide taxpayers as well as, when appropriate, a
Form 12153, Request for a Due Process Hearing. The IRS may
effect delivery of the letter (and accompanying materials) in
one of three ways: by delivering the notice personally to the
taxpayer; by leaving the notice at the taxpayer's dwelling or
usual place of business; or by mailing the notice to the
taxpayer at his last known address by certified or registered
mail.
Q-A10. What must a CDP Notice given under section 6320
include?
A-A10. These notices must include, in simple and nontechnical
terms:
(i) The amount of the unpaid tax.
(ii) A statement concerning the taxpayer's right to request a
CDP hearing during the 30-day period that commences the day
after the end of the five business day period within which the
IRS is required to provide the taxpayer with notice of the
filing of the NFTL.
(iii) The administrative appeals available to the taxpayer
with respect to the NFTL and the procedures relating to such
appeals.
(iv) The statutory provisions and the procedures relating to
the release of liens on property.
Q-A11. What are the consequences if the taxpayer does not
receive or accept a CDP Notice that is properly left at the
taxpayer's dwelling or usual place of business, or sent by
certified or registered mail to the taxpayer's last known
address?
A-A11. A CDP Notice properly sent by certified or registered
mail to the taxpayer's last known address or left at the
taxpayer's dwelling or usual place of business is sufficient to
start the 30-day period, commencing the day after the end of the
five business day notification period, within which the taxpayer
may request a CDP hearing. Actual receipt is not a prerequisite
to the validity of the CDP Notice.
Q-A12. What if the taxpayer does not receive the CDP Notice
because the IRS did not send that notice by certified or
registered mail to the taxpayer's last known address, or failed
to leave it at the dwelling or usual place of business of the
taxpayer, and the taxpayer fails to request a CDP hearing with
Appeals within the 30-day period commencing the day after the
end of the five business day notification period?
A-A12. A NFTL becomes effective upon filing. The validity and
priority of a NFTL is not conditioned on notification to the
taxpayer pursuant to section 6320. Therefore, the failure to
notify the taxpayer concerning the filing of a NFTL does not
affect the validity or priority of the NFTL. When the IRS
determines that it failed properly to provide a taxpayer with a
CDP Notice, it will promptly provide the taxpayer with a
substitute CDP Notice and provide the taxpayer with an
opportunity to request a CDP hearing. Substitute CDP Notices are
discussed in Q&A-B3 of paragraph (b)(2) and Q&A-C8 of
paragraph (c)(2) of this section.
(3) Examples. The following examples illustrate the
principles of this paragraph (a):
Example 1. H and W are
jointly and severally liable with respect to a jointly filed
income tax return for 1996. IRS files a NFTL with respect to H
and W in County X on January 26, 1999. This is the first NFTL
filed on or after January 19, 1999, for their 1996 liability. H
and W will each be notified of the filing of the NFTL.
Example 2. Employment
taxes for 1997 are assessed against ABC Corporation. A NFTL is
filed against ABC Corporation for the 1997 liability in County X
on June 5, 1998. A NFTL is filed against ABC Corporation for the
1997 liability in County Y on June 17, 1999. The IRS will notify
the ABC Corporation with respect to the filing of the NFTL in
County Y.
Example 3. Federal income
tax liability for 1997 is assessed against individual D. D buys
an asset and puts it in individual E's name. A NFTL is filed
against D in County X on June 5, 1999, for D's federal income
tax liability for 1997. On June 17, 1999, a NFTL for the same
tax liability is filed in County Y against E, as nominee of D.
The IRS will notify D of the filing of the NFTL in both County X
and County Y. The IRS will not notify E of the NFTL filed in
County X. The IRS is not required to notify E of the NFTL filed
in County Y. Although E is named on the NFTL filed in County Y,
E is not the person described in section 6321 (the taxpayer) who
is named on the NFTL.
(b) Entitlement to a CDP hearing —(1) In general.
A taxpayer is entitled to one CDP hearing with respect to
the first filing of a NFTL (on or after January 19, 1999) for a
given tax period or periods with respect to the unpaid tax shown
on the NFTL if the taxpayer timely requests such a hearing. The
taxpayer must request such a hearing during the 30-day period
that commences the day after the end of the five business day
period within which the IRS is required to provide the taxpayer
with notice of the filing of the NFTL.
(2) Questions and answers. The questions and answers
illustrate the provisions of this paragraph (b) as follows:
Q-B1. Is a taxpayer entitled to a CDP hearing with respect to
the filing of a NFTL for a type of tax and tax periods
previously subject to a CDP Notice with respect to a NFTL filed
in a different location on or after January 19, 1999?
A-B1. No. Although the taxpayer will receive notice of each
filing of a NFTL, under section 6320(b)(2), the taxpayer is
entitled to only one CDP hearing under section 6320 for the type
of tax and tax periods with respect to the first filing of a
NFTL that occurs on or after January 19, 1999, with respect to
that unpaid tax. Accordingly, if the taxpayer does not timely
request a CDP hearing with respect to the first filing of a NFTL
on or after January 19, 1999, for a given tax period or periods
with respect to an unpaid tax, the taxpayer forgoes the right to
a CDP hearing with Appeals and judicial review of the Appeals
determination with respect to the NFTL. Under such
circumstances, the taxpayer may request an equivalent hearing as
described in paragraph (i) of this section.
Q-B2. Is the taxpayer entitled to a CDP hearing when a NFTL
for an unpaid tax is filed on or after January 19, 1999, in one
recording office and a NFTL was previously filed for the same
unpaid tax in another recording office prior to that date?
A-B2. Yes. Under section 6320(b)(2), the taxpayer is entitled
to a CDP hearing under section 6320 for each tax period with
respect to the first filing of a NFTL on or after January 19,
1999, with respect to an unpaid tax, whether or not a NFTL was
filed prior to January 19, 1999, for the same unpaid tax and tax
period or periods.
Q-B3. When the IRS provides the taxpayer with a substitute
CDP Notice and the taxpayer timely requests a CDP hearing, is
the taxpayer entitled to a CDP hearing before Appeals?
A-B3. Yes. Unless the taxpayer provides the IRS a written
withdrawal of the request that Appeals conduct a CDP hearing,
the taxpayer is entitled to a CDP hearing before Appeals.
Following the hearing, Appeals will issue a Notice of
Determination, and the taxpayer is entitled to seek judicial
review of that Notice of Determination.
Q-B4. If the IRS sends a second CDP Notice under section 6320
(other than a substitute CDP Notice) for a tax period and with
respect to an unpaid tax for which a section 6320 CDP Notice was
previously sent, is the taxpayer entitled to a section 6320 CDP
hearing based on the second CDP Notice?
A-B4. No. The taxpayer is entitled to a CDP hearing under
section 6320 for each tax period only with respect to the first
filing of a NFTL on or after January 19, 1999, with respect to
an unpaid tax.
Q-B5. Is a nominee of, or a person holding property of, the
taxpayer entitled to a CDP hearing or an equivalent hearing?
A-B5. No. Such person is not the person described in section
6321 and is, therefore, not entitled to a CDP hearing or an
equivalent hearing (as discussed in paragraph (i) of this
section). Such person, however, may seek reconsideration by the
IRS office collecting the tax or filing the NFTL, an
administrative hearing before Appeals under its Collection
Appeals Program, or assistance from the National Taxpayer
Advocate. However, any such administrative hearing would not be
a CDP hearing under section 6320 and any determination or
decision resulting from the hearing would not be subject to
judicial review under section 6320. Such person also may avail
himself of the administrative procedure included in section
6325(b)(4) or of any other procedures to which he is entitled.
(3) Examples. The following examples illustrate the
principles of this paragraph (b):
Example 1. H and W are
jointly and severally liable with respect to a jointly filed
income tax return for 1996. The IRS files a NFTL with respect to
H and W in County X on January 26, 1999. This is the first NFTL
filed on or after January 19, 1999, for their 1996 liability. H
and W are each entitled to a CDP hearing with respect to the
NFTL filed in County X. On June 17, 1999, a NFTL for the same
tax liability is filed against H and W in County Y. The IRS will
give H and W notification of the NFTL filed in County Y. H and
W, however, are not entitled to a CDP hearing or an equivalent
hearing with respect to the NFTL filed in County Y.
Example 2. Federal income
tax liability for 1997 is assessed against individual D. D buys
an asset and puts it in individual E's name. A NFTL is filed
against E, as nominee of D in County X on June 5, 1999, for D's
federal income tax liability for 1997. The IRS will give D a CDP
Notice with respect to the NFTL filed in County X. The IRS will
not notify E of the NFTL filed in County X. The IRS is not
required to notify E of the filing of the NFTL in County X.
Although E is named on the NFTL filed in County X, E is not the
person described in section 6321 (the taxpayer) who is named on
the NFTL.
(c) Requesting a CDP hearing —(1) In general. When
a taxpayer is entitled to a CDP hearing under section 6320, the
CDP hearing must be requested during the 30-day period that
commences the day after the end of the five business day period
within which the IRS is required to provide the taxpayer with a
CDP Notice with respect to the filing of the NFTL.
(2) Questions and answers. The questions and answers
illustrate the provisions of this paragraph (c) as follows:
Q-C1. What must a taxpayer do to obtain a CDP hearing?
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, http://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-C2. Must the request for the CDP hearing be in writing?
A-C2. Yes. There are several reasons why the request for a
CDP hearing must be in writing. The filing of a timely request
for a CDP hearing is the first step in what may result in a
court proceeding. A written request will provide proof that the
CDP hearing was requested and thus permit the court to verify
that it has jurisdiction over any subsequent appeal of the
Notice of Determination issued by Appeals. In addition, the
receipt of the written request will establish the date on which
the periods of limitation under section 6502 (relating to
collection after assessment), section 6531 (relating to criminal
prosecutions), and section 6532 (relating to suits) are
suspended as a result of the CDP hearing and any judicial
appeal. Moreover, because the IRS anticipates that taxpayers
will contact the IRS office that issued the CDP Notice for
further information or assistance in filling out Form 12153, or
to attempt to resolve their liabilities prior to going through
the CDP hearing process, the requirement of a written request
should help prevent any misunderstanding as to whether a CDP
hearing has been requested. If the information requested on Form
12153 is furnished by the taxpayer, the written request also
will help to establish the issues for which the taxpayer seeks a
determination by Appeals.
Q-C3. When must a taxpayer request a CDP hearing with respect
to a CDP Notice issued under section 6320?
A-C3. A taxpayer must submit a written request for a CDP
hearing within the 30-day period that commences the day after
the end of the five business day period following the filing of
the NFTL. Any request filed during the five business day period
(before the beginning of the 30-day period) will be deemed to be
filed on the first day of the 30-day period. The period for
submitting a written request for a CDP hearing with respect to a
CDP Notice issued under section 6320 is slightly different from
the period for submitting a written request for a CDP hearing
with respect to a CDP Notice issued under section 6330. For a
CDP Notice issued under section 6330, the taxpayer must submit a
written request for a CDP hearing within the 30-day period
commencing the day after the date of the CDP Notice.
Q-C4. How will the timeliness of a taxpayer's written request
for a CDP hearing be determined?
A-C4. The rules and regulations under section 7502 and
section 7503 will apply to determine the timeliness of the
taxpayer's request for a CDP hearing, if properly transmitted
and addressed as provided in A-C6 of this paragraph (c)(2).
Q-C5. Is the 30-day period within which a taxpayer must make
a request for a CDP hearing extended because the taxpayer
resides outside the United States?
A-C5. No. Section 6320 does not make provision for such a
circumstance. Accordingly, all taxpayers who want a CDP hearing
under section 6320 must request such a hearing within the 30-day
period that commences the day after the end of the five business
day notification period.
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).
Q-C7. What will happen if the taxpayer does not request a CDP
hearing in writing within the 30-day period that commences the
day after the end of the five business day notification period?
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.
Q-C8. When must a taxpayer request a CDP hearing with respect
to a substitute CDP Notice?
A-C8. A CDP hearing with respect to a substitute CDP Notice
must be requested in writing by the taxpayer prior to the end of
the 30-day period commencing the day after the date of the
substitute CDP Notice.
Q-C9. Can taxpayers attempt to resolve the matter of the NFTL
with an officer or employee of the IRS office collecting the tax
or filing the NFTL either before or after requesting a CDP
hearing?
A-C9. Yes. Taxpayers are encouraged to discuss their concerns
with the IRS office collecting the tax or filing the NFTL,
either before or after they request a CDP hearing. If such a
discussion occurs before a request is made for a CDP hearing,
the matter may be resolved without the need for Appeals
consideration. However, these discussions do not suspend the
running of the 30-day period, commencing the day after the end
of the five business day notification period, within which the
taxpayer is required to request a CDP hearing, nor do they
extend that 30-day period. If discussions occur after the
request for a CDP hearing is filed and the taxpayer resolves the
matter with the IRS office collecting the tax or filing the NFTL,
the taxpayer may withdraw in writing the request that a CDP
hearing be conducted by Appeals. The taxpayer can also waive in
writing some or all of the requirements regarding the contents
of the Notice of Determination.
(3) Examples. The following examples illustrate the
principles of this paragraph (c):
Example 1. A NFTL for a
1997 income tax liability assessed against individual A is filed
in County X on June 17, 1999. The IRS mails a CDP Notice to
individual A's last known address on June 18, 1999. Individual A
has until July 26, 1999, a Monday, to request a CDP hearing. The
five business day period within which the IRS is required to
notify individual A of the filing of the NFTL in County X
expires on June 24, 1999. The 30-day period within which
individual A may request a CDP hearing begins on June 25, 1999.
Because the 30-day period expires on July 24, 1999, a Saturday,
individual A's written request for a CDP hearing will be
considered timely if it is properly transmitted and addressed to
the IRS in accordance with section 7502 and the regulations
thereunder no later than July 26, 1999.
Example 2. Same facts as
in Example 1, except that individual A is on vacation,
outside the United States, or otherwise does not receive or read
the CDP Notice until July 19, 1999. As in Example 1, individual
A has until July 26, 1999, to request a CDP hearing. If
individual A does not request a CDP hearing, individual A may
request an equivalent hearing as to the NFTL at a later time.
The taxpayer should make a request for an equivalent hearing at
the earliest possible time.
Example 3. Same facts as
in Example 2, except that individual A does not receive
or read the CDP Notice until after July 26, 1999, and does not
request a hearing by July 26, 1999. Individual A is not entitled
to a CDP hearing. Individual A may request an equivalent hearing
as to the NFTL at a later time. The taxpayer should make a
request for an equivalent hearing at the earliest possible time.
Example 4. Same facts as
in Example 1, except the IRS determines that the CDP
Notice mailed on June 18, 1999, was not mailed to individual A's
last known address. As soon as practicable after making this
determination, the IRS will mail a substitute CDP Notice to
individual A at individual A's last known address, hand deliver
the substitute CDP Notice to individual A, or leave the
substitute CDP Notice at individual A's dwelling or usual place
of business. Individual A will have 30 days commencing on the
day after the date of the substitute CDP Notice within which to
request a CDP hearing.
(d) Conduct of CDP hearing —(1) In general. If
a taxpayer requests a CDP hearing under section 6320(a)(3)(B)
(and does not withdraw that request), the CDP hearing will be
held with Appeals. The taxpayer is entitled under section 6320
to a CDP hearing for the unpaid tax and tax periods set forth in
a NFTL only with respect to the first filing of a NFTL on or
after January 19, 1999. To the extent practicable, the CDP
hearing requested under section 6320 will be held in conjunction
with any CDP hearing the taxpayer requests under section 6330. A
CDP hearing will be conducted by an employee or officer of
Appeals who, prior to the first CDP hearing under section 6320
or section 6330, has had no involvement with respect to the
unpaid tax for the tax periods to be covered by the hearing,
unless the taxpayer waives this requirement.
(2) Questions and answers. The questions and answers
illustrate the provisions of this paragraph (d) as follows:
Q-D1. Under what circumstances can a taxpayer receive more
than one CDP hearing under section 6320 with respect to a tax
period?
A-D1. The taxpayer may receive more than one CDP hearing
under section 6320 with respect to a tax period where the tax
involved is a different type of tax (for example, an employment
tax liability, where the original CDP hearing for the tax period
involved an income tax liability), or where the same type of tax
for the same period is involved, but where the amount of the
unpaid tax has changed as a result of an additional assessment
of tax (not including interest or penalties) for that period or
an additional accuracy-related or filing-delinquency penalty has
been assessed. The taxpayer is not entitled to another CDP
hearing under section 6320 if the additional assessment
represents accruals of interest, accruals of penalties, or both.
Q-D2. Will a CDP hearing with respect to one tax period be
combined with a CDP hearing with respect to another tax period?
A-D2. To the extent practicable, a CDP hearing with respect
to one tax period shown on the NFTL will be combined with any
and all other CDP hearings which the taxpayer has requested.
Q-D3. Will a CDP hearing under section 6320 be combined with
a CDP hearing under section 6330?
A-D3. To the extent practicable, a CDP hearing under section
6320 will be held in conjunction with a CDP hearing under
section 6330.
Q-D4. What is considered to be prior involvement by an
employee or officer of Appeals with respect to the unpaid tax
and tax period involved in the hearing?
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.
Q-D5. How can a taxpayer waive the requirement that the
officer or employee of Appeals have no prior involvement with
respect to the tax and tax periods involved in the CDP hearing?
A-D5. The taxpayer must sign a written waiver.
Q-D6. How are CDP hearings conducted?
A-D6. The formal hearing procedures required under the
Administrative Procedure Act, 5 U.S.C. 551 et seq., do
not apply to CDP hearings. CDP hearings are much like Collection
Appeal Program (CAP) hearings in that they are informal in
nature and do not require the Appeals officer or employee and
the taxpayer, or the taxpayer's representative, to hold a
face-to-face meeting. A CDP hearing may, but is not required to,
consist of a face-to-face meeting, one or more written or oral
communications between an Appeals officer or employee and the
taxpayer or the taxpayer's representative, or some combination
thereof. A transcript or recording of any face-to-face meeting
or conversation between an Appeals officer or employee and the
taxpayer or the taxpayer's representative is not required. The
taxpayer or the taxpayer's representative does not have the
right to subpoena and examine witnesses at a CDP hearing.
Q-D7. If a taxpayer wants a face-to-face CDP hearing, where
will it be held?
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.
(2) Spousal defenses. A taxpayer may raise any
appropriate spousal defenses at a CDP hearing unless the
Commissioner has already made a final determination as to
spousal defenses in a statutory notice of deficiency or final
determination letter. To claim a spousal defense under section
66 or section 6015, the taxpayer must do so in writing according
to rules prescribed by the Commissioner or the Secretary.
Spousal defenses raised under sections 66 and 6015 in a CDP
hearing are governed in all respects by the provisions of
sections 66 and section 6015 and the regulations and procedures
thereunder.
(3) Questions and answers. The questions and answers
illustrate the provisions of this paragraph (e) as follows:
Q-E1. What factors will Appeals consider in making its
determination?
A-E1. Appeals will consider the following matters in making
its determination:
(i) Whether the IRS met the requirements of any applicable
law or administrative procedure.
(ii) Any issues appropriately raised by the taxpayer relating
to the unpaid tax.
(iii) Any appropriate spousal defenses raised by the
taxpayer.
(iv) Any challenges made by the taxpayer to the
appropriateness of the NFTL filing.
(v) Any offers by the taxpayer for collection alternatives.
(vi) Whether the continued existence of the filed NFTL
represents a balance between the need for the efficient
collection of taxes and the legitimate concern of the taxpayer
that any collection action be no more intrusive than necessary.
Q-E2. When is a taxpayer entitled to challenge the existence
or amount of the tax liability specified in the CDP Notice?
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.
Q-E3. Are spousal defenses subject to the limitations imposed
under section 6330(c)(2)(B) on a taxpayer's right to challenge
the tax liability specified in the CDP Notice at a CDP hearing?
A-E3. The limitations imposed under section 6330(c)(2)(B) do
not apply to spousal defenses. When a taxpayer asserts a spousal
defense, the taxpayer is not disputing the amount or existence
of the liability itself, but asserting a defense to the
liability which may or may not be disputed. A spousal defense
raised under section 66 or section 6015 is governed by section
66 or section 6015 and the regulations and procedures thereunder.
Any limitation under those sections, regulations, and procedures
therefore will apply.
Q-E4. May a taxpayer raise at a CDP hearing a spousal defense
under section 66 or section 6015 if that defense was raised and
considered administratively and the Commissioner has issued a
statutory notice of deficiency or final determination letter
addressing the spousal defense?
A-E4. No. A taxpayer is precluded from raising a spousal
defense at a CDP hearing when the Commissioner has made a final
determination under section 66 or section 6015 in a final
determination letter or statutory notice of deficiency. However,
a taxpayer may raise spousal defenses in a CDP hearing when the
taxpayer has previously raised spousal defenses, but the
Commissioner has not yet made a final determination regarding
this issue.
Q-E5. May a taxpayer raise at a CDP hearing a spousal defense
under section 66 or section 6015 if that defense was raised and
considered in a prior judicial proceeding that has become final?
A-E5. No. A taxpayer is precluded by the doctrine of res
judicata and by the specific limitations under section 66 or
section 6015 from raising a spousal defense in a CDP hearing
under these circumstances.
Q-E6. What collection alternatives are available to the
taxpayer?
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).
Q-E7. What issues may a taxpayer raise in a CDP hearing under
section 6320 if the taxpayer previously received a notice under
section 6330 with respect to the same tax and tax period and did
not request a CDP hearing with respect to that notice?
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.
Q-E8. How will Appeals issue its determination?
A-E8. (i) Taxpayers will be sent a dated Notice of
Determination by certified or registered mail. The Notice of
Determination will set forth Appeals' findings and decisions. It
will state whether the IRS met the requirements of any
applicable law or administrative procedure; it will resolve any
issues appropriately raised by the taxpayer relating to the
unpaid tax; it will include a decision on any appropriate
spousal defenses raised by the taxpayer; it will include a
decision on any challenges made by the taxpayer to the
appropriateness of the NFTL filing; it will respond to any
offers by the taxpayer for collection alternatives; and it will
address whether the continued existence of the filed NFTL
represents a balance between the need for the efficient
collection of taxes and the legitimate concern of the taxpayer
that any collection action be no more intrusive than necessary.
The Notice of Determination will also set forth any agreements
that Appeals reached with the taxpayer, any relief given the
taxpayer, and any actions the taxpayer or the IRS are required
to take. Lastly, the Notice of Determination will advise the
taxpayer of the taxpayer's right to seek judicial review within
30 days of the date of the Notice of Determination.
(ii) Because taxpayers are encouraged to discuss their
concerns with the IRS office collecting the tax or filing the
NFTL, certain matters that might have been raised at a CDP
hearing may be resolved without the need for Appeals
consideration. Unless, as a result of these discussions, the
taxpayer agrees in writing to withdraw the request that Appeals
conduct a CDP hearing, Appeals will still issue a Notice of
Determination. The taxpayer can, however, waive in writing
Appeals' consideration of some or all of the matters it would
otherwise consider in making its determination.
Q-E9. Is there a period of time within which Appeals must
conduct a CDP hearing or issue a Notice of Determination?
A-E9. No. Appeals will, however, attempt to conduct a CDP
hearing and issue a Notice of Determination as expeditiously as
possible under the circumstances.
Q-E10. Why is the Notice of Determination and its date
important?
A-E10. The Notice of Determination will set forth Appeals'
findings and decisions with respect to the matters set forth in
A-E1 of this paragraph (e)(3). The 30-day period within which
the taxpayer is permitted to seek judicial review of Appeals'
determination commences the day after the date of the Notice of
Determination.
Q-E11. If an Appeals officer considers the merits of a
taxpayer's liability in a CDP hearing when the taxpayer had
previously received a statutory notice of deficiency or
otherwise had an opportunity to dispute the liability prior to
the NFTL, will the Appeals officer's determination regarding
those liability issues be considered part of the Notice of
Determination?
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.
(4) Examples. The following examples illustrate the
principles of this paragraph (e):
Example 1. The IRS sends a
statutory notice of deficiency to the taxpayer at his last known
address asserting a deficiency for the tax year 1995. The
taxpayer receives the notice of deficiency in time to petition
the Tax Court for a redetermination of the asserted deficiency.
The taxpayer does not timely file a petition with the Tax Court.
The taxpayer is precluded from challenging the existence or
amount of the tax liability in a subsequent CDP hearing.
Example 2. Same facts as
in Example 1, except the taxpayer does not receive the
notice of deficiency in time to petition the Tax Court and did
not have another prior opportunity to dispute the tax liability.
The taxpayer is not precluded from challenging the existence or
amount of the tax liability in a subsequent CDP hearing.
Example 3. The IRS
properly assesses a trust fund recovery penalty against the
taxpayer. The IRS offers the taxpayer the opportunity for a
conference with Appeals at which the taxpayer would have the
opportunity to dispute the assessed liability. The taxpayer
declines the opportunity to participate in such a conference.
The taxpayer is precluded from challenging the existence or
amount of the tax liability in a subsequent 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) Questions and answers. The questions and answers
illustrate the provisions of this paragraph (f) as follows:
Q-F1. What must a taxpayer do to obtain judicial review of a
Notice of Determination?
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-F2. With respect to the relief available to the taxpayer
under section 6015, what is the time frame within which a
taxpayer may seek Tax Court review of Appeals' determination
following a CDP hearing?
A-F2. If the taxpayer seeks Tax Court review not only of
Appeals' denial of relief under section 6015, but also of relief
requested with respect to other issues raised in the CDP
hearing, the taxpayer should request Tax Court review within the
30-day period commencing the day after the date of the Notice of
Determination. If the taxpayer only seeks Tax Court review of
Appeals' denial of relief under section 6015, then the taxpayer
should request Tax Court review, as provided by section 6015(e),
within 90 days of Appeals' determination. If a request for Tax
Court review is filed after the 30-day period for seeking
judicial review under section 6320, then only the taxpayer's
section 6015 claims may be reviewable by 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) Effect of request for CDP hearing and judicial review
on periods of limitation and collection activity —(1) In
general. The periods of limitation under section 6502
(relating to collection after assessment), section 6531
(relating to criminal prosecutions), and section 6532 (relating
to suits) are suspended until the date the IRS receives the
taxpayer's written withdrawal of the request for a CDP hearing
by Appeals or the determination resulting from the CDP hearing
becomes final by expiration of the time for seeking judicial
review or the exhaustion of any rights to appeals following
judicial review. In no event shall any of these periods of
limitation expire before the 90th day after the date on which
the IRS receives the taxpayer's written withdrawal of the
request that Appeals conduct a CDP hearing or the determination
with respect to such hearing becomes final upon either the
expiration of the time for seeking judicial review or upon
exhaustion of any rights to appeals following judicial review.
(2) Questions and answers. The questions and answers
illustrate the provisions of this paragraph (g) as follows:
Q-G1. For what period of time will the periods of limitation
under sections 6502, 6531, and 6532 remain suspended if the
taxpayer timely requests a CDP hearing concerning the filing of
a NFTL?
A-G1. The suspension period commences on the date the IRS
receives the taxpayer's written request for a CDP hearing. The
suspension period continues until the IRS receives a written
withdrawal by the taxpayer of the request for a CDP hearing or
the Notice of Determination resulting from the CDP hearing
becomes final. In no event shall any of these periods of
limitation expire before the 90th day after the day on which the
IRS receives the taxpayer's written withdrawal of the request
that Appeals conduct a CDP hearing or there is a final
determination with respect to such hearing. The periods of
limitation that are suspended under section 6320 are those which
apply to the taxes and the tax period or periods to which the
CDP Notice relates.
Q-G2. For what period of time will the periods of limitation
under sections 6502, 6531, and 6532 be suspended if the taxpayer
does not request a CDP hearing concerning the filing of a NFTL,
or the taxpayer requests a CDP hearing, but his request is not
timely?
A-G2. Under either of these circumstances, section 6320 does
not provide for a suspension of the periods of limitation.
Q-G3. What, if any, enforcement actions can the IRS take
during the suspension period?
A-G3. Section 6330(e), made applicable to section 6320 CDP
hearings by section 6320(c), provides for the suspension of the
periods of limitation discussed in paragraph (g)(1) of these
regulations. Section 6330(e) also provides that levy actions
that are the subject of the requested CDP hearing under that
section shall be suspended during the same period. Levy actions,
however, are not the subject of a CDP hearing under section
6320. The IRS may levy for tax periods and taxes covered by the
CDP Notice under section 6320 and for other taxes and periods if
the CDP requirements under section 6330 for those taxes and
periods have been satisfied. The IRS also may file NFTLs for tax
periods or taxes not covered by the CDP Notice, may file a NFTL
for the same tax and tax period stated on the CDP Notice at
another recording office, and may take other non-levy collection
actions such as initiating judicial proceedings to collect the
tax shown on the CDP Notice or offsetting overpayments from
other periods, or of other taxes, against the tax shown on the
CDP Notice. Moreover, the provisions in section 6330 do not
apply when the IRS levies for the tax and tax period shown on
the CDP Notice to collect a state tax refund due the taxpayer,
or determines that collection of the tax is in jeopardy.
Finally, section 6330 does not prohibit the IRS from accepting
any voluntary payments made for the tax and tax period stated on
the CDP Notice.
(3) Examples. The following examples illustrate the
principles of this paragraph (g):
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) Retained jurisdiction of Appeals —(1) In
general. The Appeals office that makes a determination under
section 6320 retains jurisdiction over that determination,
including any subsequent administrative hearings that may be
requested by the taxpayer regarding the NFTL and any collection
actions taken or proposed with respect to Appeals'
determination. Once a taxpayer has exhausted his other remedies,
Appeals' retained jurisdiction permits it to consider whether a
change in the taxpayer's circumstances affects its original
determination. Where a taxpayer alleges a change in
circumstances that affects Appeals' original determination,
Appeals may consider whether changed circumstances warrant a
change in its earlier determination.
(2) Questions and answers. The questions and answers
illustrate the provisions of this paragraph (h) as follows:
Q-H1. Are the periods of limitation suspended during the
course of any subsequent Appeals consideration of the matters
raised by a taxpayer when the taxpayer invokes the retained
jurisdiction of Appeals under section 6330(d)(2)(A) or
(d)(2)(B)?
A-H1. No. Under section 6320(b)(2), 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. Any
subsequent consideration by Appeals pursuant to its retained
jurisdiction is not a continuation of the original CDP hearing
and does not suspend the periods of limitation.
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) Equivalent hearing —(1) In general. A
taxpayer who fails to make a timely request for a CDP hearing is
not entitled to a CDP hearing. Such a taxpayer may nevertheless
request an administrative hearing with Appeals, which is
referred to herein as an “equivalent hearing.” The
equivalent hearing will be held by Appeals and generally will
follow Appeals' procedures for a CDP hearing. Appeals will not,
however, issue a Notice of Determination. Under such
circumstances, Appeals will issue a Decision Letter.
(2) Questions and answers. The questions and answers
illustrate the provisions of this paragraph (i) as follows:
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-I2. What issues will Appeals consider at an equivalent
hearing?
A-I2. In an equivalent hearing, Appeals will consider the
same issues that it would have considered at a CDP hearing on
the same matter.
Q-I3. Are the periods of limitation under sections 6502,
6531, and 6532 suspended if the taxpayer does not timely request
a CDP hearing and is subsequently given an equivalent hearing?
A-I3. No. The suspension period provided for in section
6330(e) relates only to hearings requested within the 30-day
period that commences on the day after the end of the five
business day period following the filing of the NFTL, that is,
CDP hearings.
Q-I4. Will collection action, including the filing of
additional NFTLs, be suspended if a taxpayer requests and
receives an equivalent hearing?
A-I4. Collection action is not required to be suspended.
Accordingly, the decision to take collection action during the
pendency of an equivalent hearing will be determined on a
case-by-case basis. Appeals may request the IRS office with
responsibility for collecting the taxes to suspend all or some
collection action or to take other appropriate action if it
determines that such action is appropriate or necessary under
the circumstances.
Q-I5. What will the Decision Letter state?
A-I5. The Decision Letter will generally contain the same
information as a Notice of Determination.
Q-I6. Will a taxpayer be able to obtain Tax Court review of a
decision made by Appeals with respect to an equivalent hearing?
A-I6. Section 6320 does not authorize a taxpayer to appeal
the decision of Appeals with respect to an equivalent hearing. A
taxpayer may under certain circumstances be able to seek Tax
Court review of Appeals' denial of relief under section 6015.
Such review must be sought within 90 days of the issuance of
Appeals' determination on those issues, as provided by section
6015(e).
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).
QI11. 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?
AI11. 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.
[T.D. 8979, 67 FR 2561, Jan. 18, 2002, as amended by T.D.
9290, 71 FR 60839, Oct. 17, 2006]
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