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Case number 14-1004, Lisa A. Edwards at L Appellants v. Commissioner of Internal Revenue Service.

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Mr. Gardner for the Appellants, Ms.

[00:00:09] Speaker 01:
Bradley for the Appellee.

[00:00:38] Speaker 02:
Good morning, Your Honor.

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Bruce E. Gardner for the appellants, Lisa Edwards and Joseph Thomas, who are the taxpayers in this case.

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This case is about the trial court's reluctance to order the IRS to pay the taxpayers' litigation costs and the trial court's failure to adhere to precedential cases decided by the entire U.S.

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tax court and this Court so that the taxpayers legally seize money

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would be returned to them.

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The trial court's December 16, 2013 judicial dismissal failed to follow various cases of this court and the tax court.

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Patenza v. Commissioner, where it was held that the IRS must prove both the existence of the deficiency and the date of mailing.

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Sheldon v. Commissioner, where the tax court

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required the judges to state the grounds for the jurisdictional dismissal.

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And in this court, DeAndre versus Commissioner, 1959 case, that also required the tax court to state the basis of the jurisdictional dismissal.

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This court's decision to guard University of the United States, where the court stated that the IRS has a responsibility

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to send a notice of deficiency to the taxpayer prior to initiating proceedings to assess the tax.

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In this case, the IRS assessed and seized the taxpayer's money prior to issuing the deficiency notices.

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Or... It makes me wonder why you didn't go to the district court.

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Well, the taxpayers have a right to go to the U.S.

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tax court when

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the situation arises that the IRS hasn't issued a notice of deficiency.

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The property had been fully seized for the 2007 tax year, but had not been fully seized for the 2008 tax year.

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In addition, the IRS failed to issue final notices of intent to levy for either the 2007 tax year or the 2008 tax year.

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In the 2008 tax year, after the IRS had seized and after I brought to the attention of the IRS that they had not issued that notice, then they rescinded one of the seizures and then issued the notice and then continued to seize, despite the fact that my client had filed an appeal with the IRS Appeals Office, had a collective due process hearing.

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However, the Appeals Offices failed to issue

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a decision of a letter of termination so that the taxpayer could go back to the tax court and appeal that levy action.

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Now, I stated the issues as centering around the nonpayment of litigation costs of the taxpayers because of the unusual procedural history in this case.

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which are summarized as follows.

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By order dated June 13, 2013, the trial judge issued an order granting the taxpayers cross-motion to dismiss and stated that the IRS made no showing that a statutory notice of deficiency was ever issued to the taxpayers for the 2007 or 2008 tax year.

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The result of that decision was that the levying of the seizure

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of the taxpayers' money was illegal and required to be returned to 26 USC 6213A, which prohibited all levies that were not preceded by a notice of deficiency, a valid notice of deficiency.

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This case was prematurely closed by the tax court before the 30-day period in which the taxpayers could file a motion for attorney's fees had expired.

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The taxpayers had to vacate the June 13th, 2013 order before the tax court would hear the motion for attorney's fees.

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The taxpayers filed a limited motion to vacate that June 13th order and simultaneously filed a motion for attorney's fees.

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So the remedy of getting the litigation costs?

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No, the focus of this appeal is that the judge did not, on a jurisdictional basis, did not state the basis for which he dismissed this case.

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Well, as you know, the Commissioner argues that it be raised for the first time, but what I'm getting at is under your citation to DeAndrea.

[00:05:31] Speaker 02:
Yes.

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Under one holding, you would lose.

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Under another holding, you would win.

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And my question is, is that the nature of the clarification that you're seeking, or that you're saying that the tax court failed to provide?

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Because it was all tied to the litigation cost, and not distinct from what you're trying to get on behalf of your client.

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Well, it's kind of circular because the way this case arose... No, I know it's circular, but I want to know exactly what you're asking this Court.

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I'm asking this Court to make a decision of the basis for the dismissal of this case.

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For us to decide.

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I believe the facts are sufficient in the record for the Court to decide whether this case was dismissed based on a late-file petition or whether it was dismissed because the Internal Revenue Service never... Well, wouldn't it satisfy your requirements and not require us to make a fact-finding to simply remand it to the tax court and say that under your precedence, you have to state which was the ground for the dismissal?

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That would be satisfactory, Your Honor, yes.

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I tell you, that is your argument that under both Andrea and Shelton and other cases, when the tax court dismisses its state, it has to state which of the two grounds is the reason, the lack of the deficiency notice or the timeliness.

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That's correct, Your Honor.

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Okay.

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Now what is your argument about the notice of the intent to levy?

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You have an argument about that as well, correct?

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Yes, Your Honor.

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And is your argument there the same that

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that there's actually nothing at all in the tax court's decision addressing your argument on that issue at all?

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Is that right?

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That's correct, Your Honor.

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And that there's no, again, that did not give a reason for dismissing for lack of jurisdiction that claim?

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That's correct.

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They just seem to ignore that particular issue.

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And there's a case, is it Kennedy that says they're supposed to do that as well?

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That's correct, Your Honor.

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Now what is your third argument?

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You also have an argument about a notice of determination, is that right?

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That's correct.

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And that's about, this is something that happened after your case was already going, right?

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That's correct.

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So how does that get before us?

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That wasn't part of the complaint you raised in the tax court at all, right?

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No, but it was brought up in the tax court.

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And the issue here is that the appeals office had made a decision not to issue the Notice of Determination.

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Our position basically is just like when the IRS fails to issue... I understand your merits arguments, but did you file a, I don't know what the analogy in the tax court would be, but a demand for an injunction or a complaint for an injunction for failure to issue the Notice of Determination?

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anything like that in the tax court?

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No, Your Honor, we did not.

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So there's nothing for the tax court to rule on and therefore nothing that we can rule on on that question.

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I agree with that, Your Honor.

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All right.

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And the remaining issue is motion for costs, correct?

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Correct.

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So if we were to remand the first question, which is the issue about the notice of deficiency, that's what your cost argument is about, right?

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That's correct, Your Honor.

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If we were to remand that so that the district court would say whether the reason that the

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the trial court, I'm sorry, the tax court, sorry, I'm getting all three cases today mixed up, that the tax court didn't, on the ground that the tax court has to state its reason, then the tax court would move from there to the question of whether the government's position was substantially justified.

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For example, the tax court ruled against you

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The tax court said the reason there's no jurisdiction here is timeliness and that there actually was a notice of deficiency.

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You might have a new appeal on that question, but you wouldn't have an appeal on the attorney's fees question yet, correct?

[00:09:42] Speaker 02:
Well, that could be correct.

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The government actually conceded the issue on attorney's fees as far as the taxpayers being a prevailing party.

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The only issue that the government was contesting was the reasonableness of the amount.

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But then they took that back when they got the new order, right?

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Right, and the appeal in their brief, they now take the position that... But you weren't the prevailing party.

[00:10:06] Speaker 04:
Right, exactly.

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So if we send it back from the trial court, tax court, to tell us whether you were or not, that would be the right way to restart this fees question.

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That's correct.

[00:10:18] Speaker 04:
Anybody on the court have a further question?

[00:10:21] Speaker 04:
Why don't you reserve the rest of your time?

[00:10:22] Speaker 02:
All right, thank you.

[00:10:29] Speaker 01:
Good morning, Your Honors.

[00:10:31] Speaker 01:
My name is Janet Bradley.

[00:10:33] Speaker 01:
I'm with the Justice Department, and I'm here representing the Commissioner in this appeal.

[00:10:37] Speaker 04:
Make this a little shorter.

[00:10:38] Speaker 04:
Could I go through the same colloquy that I just went with?

[00:10:41] Speaker 04:
Absolutely.

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On the notice of deficiency, at least to me, it does not look like the trial court or the tax court gave a reason for why there was no jurisdiction.

[00:10:54] Speaker 01:
The commissioner would disagree with that.

[00:10:56] Speaker 04:
The tax court... Point me to the place in the tax court order under review.

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The tax court says either that there was no notice of deficiency or that there was and there was no timely response.

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The tax court accepted the government's position that the presentation of the postal service receipt in addition to the declaration of Supervisor McCune

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was under existing law in Zola and Ahrens, for example.

[00:11:28] Speaker 04:
So let me just read you that provision that you're talking about.

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That says respondent's records and the materials attached to respondent's jurisdictional motion strongly suggest that notices of deficiency for 2007 and 2008 have been issued to petitioners, right?

[00:11:43] Speaker 04:
Correct.

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It doesn't decide that question.

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It says it strongly suggests, right?

[00:11:47] Speaker 01:
Well, and it dismissed your motion as moved.

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Right, it did not grant your motion.

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It didn't grant our motion, but by the same – on the same hand, it didn't grant the taxpayers' motion either.

[00:11:59] Speaker 01:
And we would – what I would like to point out to the Court before we get to the next question is on appeal, they rely a lot on the Shelton case, which I don't see that they even cited to that – to the Court below.

[00:12:11] Speaker 01:
We made that point in our brief.

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And they cite the Patenza.

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And with respect to Shelton,

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That was a last known address case.

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In that case, the government conceded that we had not properly sent the deficiency notice.

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tax court, through its precedence, has taken the position that it states a reason for dismissing jurisdiction.

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Either deficiency notice haven't been not given or deficiency notice haven't been given and there's no timely response.

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That is the position of the tax court, isn't it?

[00:12:54] Speaker 01:
I just would like to clarify that in Shelton, again,

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To the extent the court was determining that there was no valid notice, the specific reason for no valid notice was not sent to last known address.

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The court just didn't say in the context of jurisdictional questions in the tax court about whether or not the assessment was valid

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You know, the government conceded it wasn't last known address, and it wasn't timeline.

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So I understand you're distinguishing that case.

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And your argument is that, in effect, the tax court was wrong, that the tax court should have accepted the documents that you proffered, the declaration of McCune.

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McCune, yes.

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And the standard form showing that these items were sent out with no address error claimed as proof.

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But I think what we're saying is that it doesn't appear to us that the tax court

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even if you're right on the law, it doesn't appear to us that that's what the tax court did.

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Well, could the tax court perhaps been a little more articulate?

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Perhaps.

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But I think the best reading, because we would assume that the tax court itself knows what its own law is with respect to stating a position.

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And to the extent it vacated its earlier June order where it said no deficiency notice,

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was issued.

[00:14:12] Speaker 04:
So you agree though, that's the only part that I'm interested in was that little snippet in the middle of your sentence, which is that the tax court would know that its precedent requires it to state the reason, right?

[00:14:22] Speaker 01:
Absolutely.

[00:14:23] Speaker 04:
So you don't disagree with that.

[00:14:24] Speaker 04:
No, we don't disagree.

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You just read this as stating it.

[00:14:27] Speaker 04:
So if we read it as not stating the reason, if we reject that argument, then the tax court has made an error here of some kind, that is of not stating its reason, correct?

[00:14:38] Speaker 01:
Again, we believe that the court to the extent it had its findings there and citing to Zola and Ahrens where those courts had affirmed the establishment of the deficiency notice with those two elements of proof.

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established the commissioner's case.

[00:14:57] Speaker 04:
Just to be clear, that's not the question I'm asking.

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I'm pressing you all the way up against the wall.

[00:15:01] Speaker 04:
I need an answer now that you're against the wall.

[00:15:04] Speaker 04:
Assume we conclude that the tax court did not state its reason.

[00:15:09] Speaker 04:
Just reject your argument that it did.

[00:15:11] Speaker 04:
We think it didn't.

[00:15:13] Speaker 04:
That would be contradictory to its precedent, correct?

[00:15:19] Speaker 04:
You told me that a minute ago.

[00:15:20] Speaker 01:
No, no.

[00:15:21] Speaker 01:
I agree with you.

[00:15:24] Speaker 01:
Here, though, I still don't think it can be ignored in the context in which the final December order was considered.

[00:15:32] Speaker 04:
Again, I think I just disagree with you about the context.

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I see what the judge is doing here as saying the burdens on the government

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I'm not going to decide for sure whether or not it was sent, but I am going to decide that they substantially prevail, that their position was substantially justified.

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A position that the court would not have to give, we'd even have to address if the court did not believe the other.

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But we don't know what the court decided with respect to the deficiency.

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So on that understanding, you agree if the court does not state its reason,

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It's impacting and consistent with its precedent, right?

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The big if, I appreciate you don't agree with the idea.

[00:16:17] Speaker 01:
It's a big if.

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But there would be no purpose served here by a remand.

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This Court could decide it.

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It's a jurisdictional question.

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It's de novo review.

[00:16:28] Speaker 01:
Here, and let me just mention the Patenza case.

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Again, that was a tax court case, didn't go up on appeal.

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In that case was very unusual facts that the tax court, a divided tax court panel decision.

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And in that case, the Postal Service form was there.

[00:16:47] Speaker 03:
No, I understand.

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Let me go back though.

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I just need to be clear.

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At least, appellant has cited authority for the proposition that which of the reasons the tax court decides it does not have jurisdiction has a different or can have a different result for his clients.

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So it's important to know the reason.

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as opposed to us sitting here and saying, just on a jurisdictional

[00:17:28] Speaker 01:
And just let me mention Patenza and I promise to get your answer.

[00:17:32] Speaker 01:
In that case, there were unusual facts.

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The tax court here distinguished it.

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In that case, there was all sorts of evidence of some sort of a draft notice of deficiency.

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And the taxpayers there, and I guess this is the key point, had raised that there was some abnormality in the mailing.

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Interestingly enough, in Patenza, subsequently, the government did find that notice of deficiency.

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went back to the tax court and tried to get that introduced and the tax court decided it wasn't under the standard to come in.

[00:18:04] Speaker 01:
So I don't think the commissioner is aware and I don't believe the taxpayer has cited any tax court case where when it's dismissed that it's just for no deficiency, no period was entered as opposed to it wasn't sent to the last known address.

[00:18:25] Speaker 04:
You think it's different?

[00:18:26] Speaker 04:
I mean, if no deficiency notice was sent, that's considerably different for the taxpayer than if it was sent and the taxpayer didn't respond within the 30 days, right?

[00:18:39] Speaker 01:
Understandably, but here the taxpayer, all of the

[00:18:43] Speaker 01:
the brief cites extensive literature and correspondence between the IRS and the taxpayer.

[00:18:51] Speaker 01:
All of that correspondence before the notice of deficiency was sent and after was received by the taxpayer.

[00:19:01] Speaker 01:
Here taxpayers just claim, I didn't get it, doesn't seem to be all that credible in light of... Right, but the tax core was in the first order, the order that was vacated.

[00:19:11] Speaker 00:
The tax core was quite clear.

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that the tax judge believed that the government had not shown that a notice of deficiency had issued.

[00:19:21] Speaker 00:
And, in fact, in recounting the proceedings in the hearing, the respondent was unable to establish that notices of deficiency had been issued.

[00:19:29] Speaker 00:
The case was dismissed on that ground.

[00:19:32] Speaker 00:
And so, you know, in a sense, the default position is against you, that to the extent that the new order is mute, the clearest statement we have in terms of factual determination

[00:19:43] Speaker 00:
is the statement on the prior order that he ended up vacating.

[00:19:49] Speaker 01:
But by virtue of vacating it, I mean, the tax court here quite plainly could have just considered the attorney's fees motion, not gone further, and then either decided in the case of the June order would have been the prevailing party, would likely have met that test.

[00:20:08] Speaker 00:
Let me ask you, do you think the tax court was correct in saying that he had to vacate the whole order?

[00:20:12] Speaker 00:
It seemed odd to me that

[00:20:14] Speaker 00:
I understand this is a clerical mistake that in fact you have 30 days to seek costs and fees and that the file is supposed to remain open and it wasn't.

[00:20:26] Speaker 00:
And did the judge really not have power to say, oh, we'll just

[00:20:29] Speaker 00:
reopen and it deemed this 30 days to be pending.

[00:20:33] Speaker 01:
I think some of the confusion here resulted from the fact that typically when an attorney's fees motion comes before the tax court, you have an opinion, you have a party's stipulation, so you have

[00:20:46] Speaker 01:
That is a neat package, and then the taxpayer has 30 days to go ahead and request attorney's fees.

[00:20:52] Speaker 01:
Here, by virtue of that June order, I think the tax court was a little nervous, and it's in one of the transcripts, that they didn't want any sort of finality or appellate issues banned in that regard.

[00:21:07] Speaker 01:
So in other cases, I think we cite a Fifth Circuit case, Buteri, where

[00:21:13] Speaker 01:
this procedure has occurred in other situations.

[00:21:18] Speaker 01:
It's kind of an unusual situation because typically with attorney's fees, you know, the merits have already been clearly decided here by virtue of vacating that order.

[00:21:29] Speaker 01:
And the tax court here spent a goodly amount of time during a hearing explaining the process that was going to occur.

[00:21:36] Speaker 01:
explains it to counsel for the appellants, and appellants nonetheless realizing that the court could reconsider its dismissal, you know, we say it did.

[00:21:47] Speaker 01:
So by virtue of not adopting that June, I guess the Commissioner is taking the position that the tax court swung the other way, saw the error of his ways, given more information that the Commissioner presented on the issue of mailing, examined

[00:22:05] Speaker 01:
the circumstances, and we think, again, maybe inartful, but that the decision was... What about the notice of intent to let the argument?

[00:22:14] Speaker 01:
Well, we have absolutely no merit to that.

[00:22:17] Speaker 04:
In the context of a court... Well, do you agree that's not mentioned in the order of the tax court, right?

[00:22:23] Speaker 01:
In the order of the tax court, well, it said no other notice had been issued.

[00:22:31] Speaker 01:
And in the context of the tax... In the second order?

[00:22:33] Speaker 01:
In the second order, I do believe it said that the

[00:22:38] Speaker 01:
Appellants did not allege that any other determination had been made.

[00:22:44] Speaker 01:
In their petition to the tax court, they did not cite any statutory grounds for jurisdiction.

[00:22:51] Speaker 01:
They did not attach any notice to their petition.

[00:22:55] Speaker 01:
The tax court rules require that such notices be there.

[00:22:59] Speaker 04:
It is not the same issue that their position that there was no notice.

[00:23:03] Speaker 04:
They did not get a notice on the intent of that.

[00:23:05] Speaker 01:
the tax court law and there's been multiple court of appeals decision on that.

[00:23:10] Speaker 01:
In the context of the collection due process jurisdiction in the tax court, you must have not only a timely petition, but it must be in response to a notice of determination.

[00:23:21] Speaker 04:
I do not actually understand that.

[00:23:24] Speaker 04:
My question again goes to the question of what has to be in the opinion.

[00:23:30] Speaker 04:
So in the Kennedy case, the court says that you're going to say that the problem with the lack of jurisdiction is that there was never a determination letter issued or whether there was another reason, which is the same analogous question we were talking about with the notice of deficiency.

[00:23:51] Speaker 04:
Why is it, why was it okay for the tax court to dismiss, I understand your argument, there was no jurisdiction, that seems right.

[00:23:59] Speaker 04:
But there's two possible reasons, one of which is you never sent a notice of a levy.

[00:24:04] Speaker 04:
And are they entitled to know that that's the reason?

[00:24:11] Speaker 01:
Well, let me back up a little bit.

[00:24:13] Speaker 01:
Here in the case, originally after the taxpayers had filed the return, based on those original self-assessments,

[00:24:20] Speaker 01:
for the appellant.

[00:24:22] Speaker 01:
We did issue a notice of intent levy that would have given him his collection due process rights to have a hearing and to be able to have a notice of determination, which, if timely appealed, he could have sought review.

[00:24:35] Speaker 01:
Here, they did not seek a timely... So your position is there was a notice of

[00:24:42] Speaker 01:
There was a notice of intent to levy only for the initial self-assessment of the taxes on the returns.

[00:24:49] Speaker 01:
Subsequently, because the taxpayers did not file a timely petition in the tax court, the commissioner then was authorized by Section 6213 of the Code to go ahead and make the assessments

[00:25:02] Speaker 01:
which they did in August.

[00:25:05] Speaker 01:
Now, keep in mind, all along, and our brief details on this, all of the correspondence that went back and forth with the appellants as taxpayers, the notice of audit, audit.

[00:25:17] Speaker 04:
Just a pause for a minute.

[00:25:18] Speaker 04:
Again, you're into the merits, and I'm really interested only in this procedural issue of whether the judges, I am interested in the merits, but first I'm interested in the procedural issue, which is does the judge's decisions

[00:25:30] Speaker 04:
dismissing the case for lack of jurisdiction have to say why with respect to this claim?

[00:25:36] Speaker 01:
Well, number one, when they did their motion to dismiss, the appellants only moved to dismiss it on the grounds of no deficiency notice.

[00:25:44] Speaker 01:
The appellants themselves did not put that issue before the court.

[00:25:49] Speaker 01:
They responded to the commissioner's arguments in that regard, but it was not an affirmative basis for their motion.

[00:25:55] Speaker 04:
That would have dismissed the entire matter?

[00:25:57] Speaker 01:
No, that would have just dis – they challenged the 6213 deficiency jurisdiction, but not 6330.

[00:26:05] Speaker 01:
In the context of various correspondence which counsel was present,

[00:26:10] Speaker 01:
He conceded no notice of determination was issued.

[00:26:13] Speaker 01:
He understood that with respect to the supplemental tax assessments that no notice, be it a notice of lien or notice of intent levy, had been given.

[00:26:23] Speaker 04:
Your position is under those circumstances it's not required for the judge to state a reason.

[00:26:28] Speaker 04:
Is that right?

[00:26:28] Speaker 01:
Well, again, in the – we're in the tax court and there's not a whole lot of grounds for jurisdiction there.

[00:26:34] Speaker 01:
It used to principally just be deficiency jurisdiction and now we have CDP jurisdiction.

[00:26:41] Speaker 00:
So they haven't really properly gone to the tax court on that issue.

[00:26:44] Speaker 00:
It's not – it's just not right.

[00:26:45] Speaker 00:
It's not before us on appeal.

[00:26:46] Speaker 00:
They haven't really invoked the tax court jurisdiction on that.

[00:26:50] Speaker 00:
And so that's your position on why we don't have to direct the tax court to speak to that.

[00:26:54] Speaker 00:
Is that right?

[00:26:54] Speaker 00:
Correctly.

[00:26:55] Speaker 04:
Well, that's the 2013 one.

[00:26:57] Speaker 04:
There seem to be two different issues here, as Mr. Gardner described them to me.

[00:27:03] Speaker 04:
One is the notice of the intent to levy, which is about the 2007-2008 tax years.

[00:27:12] Speaker 04:
The second is this question of what happened after the CDB hearing, which was held in March of 2013.

[00:27:20] Speaker 04:
And that one, he acknowledged that in my discussion with him, was not properly before us.

[00:27:25] Speaker 01:
Well, let me just back up, because I want to be clear.

[00:27:28] Speaker 01:
Here, there was, in the context of this case, before the petition was filed, there was no CDP.

[00:27:36] Speaker 01:
Mr. Gardner did refer to a CDB, but the appropriate language

[00:27:41] Speaker 01:
is an equivalent hearing.

[00:27:43] Speaker 01:
The code provides that if a taxpayer in response to a CDP notice, a notice of intent to levy or a notice of lien, if within 30 days they file a timely request in writing on a specific form, they are entitled to a collection due process hearing.

[00:28:00] Speaker 01:
If a taxpayer does not timely request a hearing

[00:28:04] Speaker 01:
which is what happened in this case.

[00:28:07] Speaker 01:
Mr. Gardner's clients were given an equivalent hearing.

[00:28:11] Speaker 01:
The difference being is an equivalent hearing results in a decision letter which is not reviewable.

[00:28:17] Speaker 01:
The taxpayers have the ability within the service to seek, I believe, audit reconsideration, but it is not something that can be further reviewed.

[00:28:28] Speaker 01:
that the cases in the appellate courts have so sustained that.

[00:28:33] Speaker 01:
Now, with respect to his claim about a subsequent notice, one of those notices was issued.

[00:28:40] Speaker 04:
As to the four of the subsequent notice issues, does that reason have to be stated in the tax court's decision saying there's no jurisdiction?

[00:28:50] Speaker 04:
I understand your argument that there is no jurisdiction.

[00:28:52] Speaker 04:
Does that reason for no jurisdiction have to be stated?

[00:28:56] Speaker 01:
To the extent that the appellants did not ask the tax court to take collection due process jurisdiction and did not allege a notice of determination, I think to the extent that the tax court said there was no other determination.

[00:29:13] Speaker 01:
And again, in the context of the tax court, there is not broad grants of authority.

[00:29:18] Speaker 01:
The tax court is a court of limited jurisdiction, and here the tax court

[00:29:25] Speaker 01:
examined everything, understood the law in the context of what's needed to do to establish the mailing of a deficiency notice, and the tax court correctly held that there was no deficiency jurisdiction, that their petition was untimely, and there was no CDP determination so that there was no collection due process jurisdiction.

[00:29:51] Speaker 04:
for the questions.

[00:29:52] Speaker 00:
All right, time left for Mr. Garner?

[00:29:55] Speaker 00:
13 seconds.

[00:29:55] Speaker 04:
Mr. Garner will give you two minutes.

[00:29:58] Speaker 04:
Hard to even clear your throat for 15 seconds.

[00:30:02] Speaker 04:
Can you particularly address this question, the second question, which is the notice of levy?

[00:30:09] Speaker 02:
Yes.

[00:30:09] Speaker 04:
Their position is that you didn't really even ask for anything about that, so there was no reason for the court to state a reason for denying jurisdiction.

[00:30:20] Speaker 02:
Your Honor, the petition that was filed with the tax court indicated that the collection issue was an issue in this case, just like the deficiency issue was an issue in this case.

[00:30:30] Speaker 02:
Is that the what?

[00:30:31] Speaker 02:
The deficiency issue.

[00:30:32] Speaker 04:
The deficiency issue, right.

[00:30:33] Speaker 02:
The deficiency issue and the collection issue were both put into pleadings that were on the petition that was filed with the tax court.

[00:30:41] Speaker 02:
The tax court only focused on one, and the tax court probably only focused on one because the government's motion to dismiss was only on that issue.

[00:30:49] Speaker 02:
The government did not address

[00:30:50] Speaker 02:
collection issue.

[00:30:52] Speaker 02:
So if the deficiency issue were to decide or was dismissed, what remained was the collection issue, which had not been decided by the tax court.

[00:31:02] Speaker 00:
But you never alleged that you received, isn't it that the notice of determination is the key to the tax court door under, is it 6330D?

[00:31:10] Speaker 00:
Yes.

[00:31:11] Speaker 00:
And you never alleged, I mean, you never received one.

[00:31:14] Speaker 00:
You and the IRS agreed that you never received one.

[00:31:17] Speaker 00:
So what's the

[00:31:18] Speaker 00:
ground for invoking that separate basis for jurisdiction?

[00:31:21] Speaker 02:
Well, we were required to receive one under that same section.

[00:31:24] Speaker 02:
We were required to receive a notice so that we could have a hearing, a CDP hearing, a collection due process hearing, and based on the determination of the appeals office, then we could seek redress from the tax court.

[00:31:36] Speaker 02:
But since no notice was ever issued, we couldn't do that.

[00:31:40] Speaker 00:
So your position is that even though the tax court, even though that's required as a precondition for going into the tax court,

[00:31:49] Speaker 00:
you should be able to go to the tax court to complain that you didn't get it.

[00:31:53] Speaker 02:
Correct.

[00:31:53] Speaker 02:
Just like we do on a deficiency notice.

[00:31:55] Speaker 02:
If we didn't get the deficiency notice, we go into tax court.

[00:31:57] Speaker 00:
Except that once you realized you didn't have the deficiency notice and that was a reason for the tax court not to have jurisdiction, you move to have that case dismissed.

[00:32:07] Speaker 00:
It's a little odd to go into court to tell the court to tell you that the court doesn't have jurisdiction.

[00:32:12] Speaker 02:
Well, the cases in the tax court, the way they work is that usually if the government comes in and asks for a motion to dismiss because of late filing, then the taxpayer comes in and if it applies, which it applies here, comes in and tells the court, okay, you didn't have jurisdiction, but you didn't have jurisdiction because the government never issued a notice to allow us to come to the tax court.

[00:32:35] Speaker 02:
Therefore, the taxpayer's due process rights were denied.

[00:32:41] Speaker 04:
And that's what those cases you cited say, which is that the tax court's supposed to tell you which reason there's no jurisdiction.

[00:32:50] Speaker 02:
Correct.

[00:32:52] Speaker 04:
Okay, we'll take the case under sedation, and next time we'll sit in our regular courthouse.

[00:32:59] Speaker 03:
Stand, please.