What Portion of the Stipulation Didn’t You Read?

A company owes withholding tax to the IRS. The case goes to Tax Court, where the issues are resolved, including a stipulated amount of withholding. Somehow the IRS forgets about the withholding. It then goes to a collection Appeals, where the withholding mysteriously gets ignored. The case comes back to Tax Court when the IRS issues a levy. The Tax Court remands the case back to Appeals; however, $70,000 of the withholding still gets ignored.

The Tax Court originally looked at this case in 2008.

On April 28, 2008, petitioner timely filed a petition with the Court relating to the notice of determination of worker classification. W. Mgmt., Inc. v. Commissioner, T.C. Dkt. No. 9745-08 (filed Apr. 28, 2008). The Court, on June 11, 2009, filed two stipulations of settled issues in which the parties resolved the issues raised in the notice of determination of worker classification and agreed that respondent would credit $195,708 to petitioner’s 1995, 1996, 1997, 1998, and 1999 income tax withholding…Shortly thereafter, petitioner appealed the Tax Court’s decision to the U.S. Court of Appeals for the Ninth Circuit, and respondent assessed the taxes and additions to tax reflected in the decision. Respondent did not, however, take into account the $195,708 of stipulated income tax withholding.

So that’s the first error: The original stipulation of withholding didn’t make it into the record. Unsurprisingly, the company asked for a collection due process (CDP) hearing noting that the IRS forgot about the stipulated withholding credits.

Meanwhile, the company lost the appeal to the Ninth Circuit. But,

In its opinion the court recounted respondent’s assurance that “any credits due to * * * [petitioner] will be administratively applied to * * * [its] tax accounts after the [Tax Court’s] [d]ecision becomes final.”

Somehow during the CDP hearing the Appeals Officer didn’t consider the stipulated withholding credits. That’s the second error: Somehow the Appeals Officer didn’t read the record of the Tax Court. The company went back to Tax Court, asking that the credits be put into the record.

The Court, on October 1, 2014, remanded petitioner’s case to allow an Appeals officer’s consideration of “any credits, specifically credits for income tax withholding, to which [p]etitioner may be entitled.” Steve Lerner, the Appeals officer assigned to the remand, determined that petitioner was entitled to $195,708 of credits but applied only $125,084 to petitioner’s accounts. On April 16, 2015, Appeals Officer Lerner issued petitioner a supplemental notice of determination that again sustained the levy notice.

And we have the third error. The company (rightly) wanted the missing $70,624 applied, so back to Tax Court we go. And IRS Appeals gets (again, rightly) a black eye:

On remand Appeals Officer Lerner agreed petitioner was entitled to $195,708 of income tax withholding but inexplicably credited petitioner only $125,084. By not taking into account $70,624 (i.e., $195,708 less $125,084) of stipulated credits, he reneged on respondent’s assurances to the Court of Appeals; failed to consider relevant issues relating to the unpaid tax; inappropriately balanced respondent’s need for the efficient collection of taxes with petitioner’s concern regarding the levy’s intrusiveness; and contravened applicable law and administrative procedure (i.e., section 3402(d) and Internal Revenue Manual pt. 4.23.8.4.3 (Dec. 11, 2013)) requiring respondent to abate an employer’s employment tax liability to the extent it is paid by an employee…The administrative record belies respondent’s contention that Appeals Officer Lerner applied all of the stipulated credits to petitioner’s accounts. Because his determination lacked a sound basis in law and fact, Appeals Officer Lerner abused his discretion.

Yikes! As the Court noted, this is a case that should have been resolved on remand. Or could have been resolved the first time at Appeals. And should have been resolved way back in 2009. Consider that the company had to pay counsel for representation in a case which should never have needed to be filed. I hope the company asks the IRS to pay for their legal fees, and perhaps the IRS will pay up without the need for another trip to Tax Court. This is definitely a case where the company prevailed and the IRS’s position was completely unjustified.

Case: Credex, Inc. v. Commissioner, T.C. Memo 2017-241

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