[Federal Register Volume 64, Number 14 (Friday, January 22, 1999)]
[Rules and Regulations]
[Pages 3398-3405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1414]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 301
[TD 8810]
RIN 1545-AW77
Notice and Opportunity for Hearing upon Filing of Notice of Lien
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Temporary regulations.
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SUMMARY: This document contains temporary regulations relating to the
provision of notice to taxpayers of the filing of a notice of federal
tax lien (NFTL). The regulations implement certain changes made by
section 3401 of the Internal Revenue Service Restructuring and Reform
Act of 1998. They affect taxpayers against whose property and rights to
property the IRS files a NFTL. The text of these regulations also
serves as the text of the proposed regulations set forth in the notice
of proposed rulemaking on this subject in the Proposed Rules section of
this issue of the Federal Register.
DATES: These regulations are effective January 19, 1999.
FOR FURTHER INFORMATION CONTACT: Jerome D. Sekula (202) 622-3610 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
This document contains amendments to the Procedure and
Administration Regulations (26 CFR part 301) that reflect the addition
of section 6320 to the Internal Revenue Code made by section 3401 of
the Internal Revenue Service Restructuring and Reform Act of 1998
(RRA).
These temporary regulations implement the provisions of section
6320 and thus set forth the procedures the IRS will follow regarding
notice to taxpayers of the filing of a NFTL on or after January 19,
1999, the right to a hearing before the IRS Office of Appeals (Appeals)
with respect to the filing of a NFTL, the procedures that will be
followed at those hearings, judicial review of the determinations
reached at the hearings, and the suspensions of various periods of
limitation as a result of a timely request for a hearing. The
legislative history accompanying RRA also explains that Congress
intended the IRS to grant an equivalent hearing to taxpayers who do not
request a hearing under section 6320 within the 30-day period that
commences the day after the five business day notification period. H.
Conf. Rep. No. 599, 105th Cong., 2d Sess. 266 (1998). These temporary
regulations set forth the procedural requirements and rules that will
govern the conduct of such an equivalent hearing.
Explanation of Provisions
The temporary regulations provide guidance to taxpayers for
purposes of section 6320. Pursuant to section 6320, for NFTLs filed on
or after January 19, 1999, the IRS must provide written notification of
the filing of the NFTL to the taxpayer named in the NFTL. The
notification under section 6320 may be given in person, left at the
taxpayer's dwelling or usual place of business, or sent to the taxpayer
by certified or registered mail to the taxpayer's last known address
not more than five business days after the day the NFTL is filed. The
notification must state the amount of unpaid tax, inform the taxpayer
of the right to request a hearing during the 30-day period that
commences the day after the end of the five business day notification
period, inform the taxpayer of the administrative appeals available
with respect to such lien and the procedures related to such appeals,
and inform the taxpayer of the provisions and procedures relating to
the release of liens. Unless the taxpayer withdraws the request that
Appeals conduct a hearing when the taxpayer has made a timely request
for a hearing, Appeals will hold one collection due process hearing
(CDP hearing) with respect to the tax and tax period or periods
specified in the CDP hearing notice (CDP Notice). The taxpayer is
entitled to have a CDP hearing conducted by an Appeals officer who has
had no prior involvement with the unpaid tax that is the subject of the
hearing. This requirement, however, can be waived by the taxpayer in
writing. The taxpayer may seek judicial review of an Appeals
determination issued with respect to a CDP hearing. If a taxpayer
timely requests a CDP hearing, the periods of limitation relating to
collection after assessment, relating to criminal prosecutions, and
relating to suits are suspended. If the taxpayer has a hearing with
Appeals, the suspension of the applicable periods of limitation
continues until the determination resulting from that hearing becomes
final by expiration of the time for seeking review or reconsideration
before the appropriate court. If the taxpayer has withdrawn the request
for a hearing with Appeals, the suspension of the applicable periods of
limitation ends as a result of that withdrawal.
[[Page 3399]]
The temporary regulations discuss the procedures for CDP hearings
under section 6320, including the requirement that the Appeals officer
obtain verification that all legal and administrative requirements for
the filing of the NFTL have been met. The temporary regulations further
discuss the types of issues that may or may not be raised at the CDP
hearing. The types of issues that may be raised at the CDP hearing
include appropriate spousal defenses; challenges to the appropriateness
of collection actions; collection alternatives; and challenges to the
existence or amount of the liability specified in the CDP Notice. An
issue may not be raised at the CDP hearing if the issue was raised and
considered at a previous CDP hearing under section 6330 or any other
previous administrative or judicial proceeding in which the taxpayer
meaningfully participated. Challenges to the existence or amount of the
tax liability specified in the CDP Notice may be raised only 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.
Following the CDP hearing, the Appeals officer will issue a Notice
of Determination, which can be appealed to the United States Tax Court
or a district court of the United States by filing an appropriate
pleading with the court that has jurisdiction over the type of tax
involved within 30 days of the date of the determination. The temporary
regulations discuss the content of the Notice of Determination and the
rules for obtaining judicial review. The temporary regulations also
provide guidance as to the extent to which the Appeals officer will
retain jurisdiction with respect to the determination.
Lastly, the temporary regulations provide rules and procedures with
respect to the administrative hearing (referred to as an ``equivalent
hearing'') the IRS will provide to taxpayers who do not timely request
a hearing under section 6320.
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866.
Therefore, a regulatory assessment is not required. It has also been
determined that section 553 (b) of the Administrative Procedure Act (5
U.S.C. chapter 5) does not apply to these regulations. For the
applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6)
refer to the Special Analyses section of the preamble to the cross
reference notice of proposed rulemaking published in the Proposed Rules
section of this issue of the Federal Register. Pursuant to section 7805
(f) of the Internal Revenue Code, this temporary regulation will be
submitted to the Chief Counsel for Advocacy of the Small Business
Administration for comment on its impact on small business.
Drafting Information
The principal author of this regulation is Jerome D. Sekula, Office
of the Assistant Chief Counsel (General Litigation). However, other
personnel from the IRS and Treasury Department participated in its
development.
List of Subjects in 26 CFR Part 301
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income
taxes, Penalties, Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR part 301 is amended as follows:
PART 301--PROCEDURE AND ADMINISTRATION
Paragraph 1. The authority citation for part 301 continues to read
in part as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 301.6320-1T is added under the undesignated
centerheading ``Lien for Taxes'' to read as follows:
Sec. 301.6320-1T Notice and opportunity for hearing upon filing of
notice of Federal tax lien (temporary).
(a) Notification-- (1) In general. For a notice of federal tax lien
(NFTL) filed on or after January 19, 1999, district directors,
directors of service centers, and the Assistant Commissioner
(International), or their successors, are required 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 this
section 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.
(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 only required to be given 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 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. Under section 6323(f), a NFTL can be filed for more than
one tax period. The notification of the filing of a NFTL will specify
each 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
location.
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 filing
the NFTL, an administrative hearing before Appeals, or assistance from
the National Taxpayer Advocate.
Q-A7. Will the IRS give notification to a known nominee of, or
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 is, therefore, not entitled to notice, but such persons have other
remedies. See A-B5 of paragraph (b) 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
[[Page 3400]]
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 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-day period described in section 6320(a)(2).
(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
that commences 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
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 an opportunity to request a
CDP hearing.
(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 Collection Due Process hearing (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 amount of 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 tax and tax period previously subject to a CDP
Notice in a different location?
A-B1. No. Although the taxpayer will receive notice of each filing
of the NFTL, under section 6320(b)(2), the taxpayer is entitled to only
one CDP hearing under section 6320 for each tax period with respect to
the first filing of a NFTL that occurs on or after January 19, 1999,
with respect to an amount of 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 amount of unpaid tax, the taxpayer foregoes
the right to a CDP hearing with Appeals and judicial review of
Appeals's determination as to the NFTL. Under such circumstances, a
taxpayer, however, may request an equivalent hearing as described in
paragraph (i) of this section.
Q-B2. Is the taxpayer entitled to a CDP hearing where a NFTL for a
tax and tax period is filed on or after January 19, 1999, in one
recording office and a NFTL was previously filed 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
amount of unpaid tax, whether or not a NFTL was filed prior to January
19, 1999, for the same 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 he 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 amount of unpaid tax for which a section 6320 CDP Notice was
previously sent, is the taxpayer entitled to a second section 6320 CDP
hearing?
A-B4. No. The taxpayer is entitled to only one CDP hearing under
section 6320 for a tax and tax period set forth in a NFTL with respect
to the first filing of a NFTL that occurs on or after January 19, 1999.
[[Page 3401]]
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. Such person
may also avail himself of the administrative procedure included in
section 6325(b)(4) of the Internal Revenue Code 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.
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 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 give D a CDP Notice with respect to the NFTL filed
in County X. It will give D notification of the NFTL filed in 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 filing of the NFTL 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.
(c) Requesting a CDP hearing--(1) In general. Where a taxpayer is
entitled to a CDP hearing under section 6320, such a 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. The taxpayer must make a request in writing for a CDP
hearing. A written request in any form, which requests a CDP hearing,
will be acceptable. The request must include the taxpayer's name,
address, and daytime telephone number, and must be signed by the
taxpayer or the taxpayer's authorized representative and dated.
Included with the CDP Notice will be a Form 12153, Request for a
Collection Due Process Hearing, that can be used by the taxpayer in
requesting a CDP hearing. The Form 12153 requests the following
information: the taxpayer's name, address, daytime telephone number,
and taxpayer identification number (SSN or TIN); the type of tax
involved; the tax period at issue; a statement that the taxpayer
requests a hearing with Appeals concerning the filing of the NFTL; and
the reason or reasons why the taxpayer disagrees with the filing of the
NFTL. Taxpayers are encouraged to use a Form 12153 in requesting a CDP
hearing so that such a 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 or by calling, toll free, 1-800-
829-3676.
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. First, 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, for help in filling out
Form 12153, or in an attempt to resolve their liabilities prior to
going through the CDP hearing process, the requirement of a written
request should help to 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 will also 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 taxpayers are allowed 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 request 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 under section 7502 and the regulations under that
section and section 7503 and the regulations under that section 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 should the written request for a CDP hearing be sent?
A-C6. The written request for a CDP hearing should be filed with
the IRS office that issued the CDP Notice at the address indicated on
the CDP Notice. If the address of that office is not known, the request
may be sent to the District Director serving the district of the
taxpayer's residence or principal place of business. If the taxpayer
does not have a residence or principal place of business in the United
States, the request may be sent to the Director, Philadelphia Service
Center.
Q-C7. What will happen if the taxpayer does not request a section
6320 CDP hearing in writing within the 30-day period that commences the
day after
[[Page 3402]]
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 will forego the
right to a CDP hearing under section 6320 with respect to the tax and
tax period or periods shown on the CDP Notice. The taxpayer may,
however, request an equivalent hearing. 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 that commences 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 (i),
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 to only one CDP hearing for a tax and tax period set forth in
a NFTL under section 6320 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 has had no
involvement with respect to the tax for the tax period or periods
covered by the hearing prior to the first CDP hearing under section
6320 or section 6330, unless the taxpayer waives that 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 with respect to a tax period?
A-D1. The taxpayer may receive more than one CDP hearing 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 tax has changed as a result of an additional assessment
of tax for that period or an additional accuracy-related or filing
delinquency penalty has been assessed. The taxpayer is not entitled to
another CDP hearing if the additional assessment represents accruals of
interest or accruals of penalties.
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 hearing with respect to one tax
period shown on the NFTL will be combined with any and all other
hearings to which the taxpayer may be entitled with respect to other
tax periods shown on the NFTL.
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 tax and tax period or periods
involved in the hearing?
A-D4. Prior involvement by an employee or officer of Appeals
includes participation or involvement in an Appeals hearing (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 or periods
shown on the NFTL.
Q-D5. How can a taxpayer waive the requirement that the officer or
employee of Appeals had no prior involvement with respect to the tax
and tax period or periods involved in the CDP hearing?
A-D5. The taxpayer must sign a written waiver.
(e) Matters considered at CDP hearing--(1) In general. 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 the issuance of a determinaton,
the hearing officer is required to obtain verification from the IRS
office collecting the tax or filing the
[[Page 3403]]
NFTL that the requirements of any applicable law or administrative
procedure 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 tax liability specified on
the CDP Notice for any tax period shown 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 that 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. To claim a spousal defense under section
6015, the taxpayer must do so in writing according to rules prescribed
by the Secretary. Spousal defenses raised under section 6015 in a CDP
hearing are governed in all respects by the provisions of section 6015
and the procedures prescribed by the Secretary 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 tax liability specified in 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
asserted in the notice of deficiency. An opportunity to dispute a
liability includes a prior opportunity for a conference with Appeals
that was offered either before or after the assessment of the
liability.
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. No. The limitations imposed under section 6330(c)(2)(B) do
not apply to spousal defenses. A spousal defense raised under section
6015 is governed by that section; therefore any limitations under
section 6015 will apply.
Q-E4. May a taxpayer raise at a CDP hearing a spousal defense under
section 6015 if that defense was raised and considered in a prior
judicial proceeding that has become final?
A-E4. No. A taxpayer is precluded by limitations under section 6015
from raising a spousal defense under section 6015 in a CDP hearing
under these circumstances.
Q-E5. What collection alternatives are available to the taxpayer?
A-E5. Collection alternatives would include, for example,
withdrawal of the NFTL in circumstances that will facilitate the
collection of the tax liability, an installment agreement, an offer-in-
compromise, the posting of a bond, or the substitution of other assets.
Q-E6. What issues may a taxpayer raise in a CDP hearing under
section 6320 if he 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-E6. 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 tax liability
for the tax and tax period specified in the CDP Notice may be
challenged only if the taxpayer did not already have an opportunity to
dispute that tax liability. Where 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 already had an opportunity to dispute the
existence or amount of the tax liability.
Q-E7. How will Appeals issue its determination?
A-E7. (i) Taxpayers will be sent a dated Notice of Determination by
certified or registered mail. The Notice of Determination will set
forth Appeals's 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 Appeals reached with the taxpayer, any relief given the
taxpayer, and any actions the taxpayer and/or the IRS are required to
take. Lastly, the Notice of Determination will advise the taxpayer of
his 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 to withdraw in writing the request
that Appeals conduct a CDP hearing, Appeals will still issue a Notice
of Determination. The taxpayer can, however, waive in writing Appeals's
consideration of some or all of the matters it would otherwise consider
in making its determination.
Q-E8. Is there a time limit on the CDP hearings or on when Appeals
must issue a Notice of Determination?
A-E8. No. Appeals will, however, attempt to conduct CDP hearings as
expeditiously as possible.
Q-E9. Why is the Notice of Determination and its date important?
A-E9. The Notice of Determination will set forth Appeals's findings
and decisions with respect to the matters set forth in A-E1 of this
paragraph (e)(3).
[[Page 3404]]
The date of the Notice of Determination establishes the beginning date
of the 30-day period within which the taxpayer is permitted to seek
judicial review of Appeals's determination.
(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
taxable 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 therefore 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. The taxpayer is not, therefore, 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 opportunity for a
conference at which the taxpayer would have the opportunity to
dispute the 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 in writing. The taxpayer may appeal such
determinations made by Appeals within 30 days after the date of the
Notice of Determination to the Tax Court or a district court of the
United States, as appropriate.
(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,
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 or to a district court of the United States.
Q-F2. With respect to the relief available to the taxpayer under
section 6015(b) or (c), what is the time frame within which a taxpayer
may seek Tax Court review of Appeals's determination following a CDP
hearing?
A-F2. If the taxpayer seeks Tax Court review not only of Appeals's
denial of relief under section 6015 (b) or (c), 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's denial of relief
under section 6015 (b) or (c), the taxpayer should request Tax Court
review, as provided by section 6015(e), within 90 days of Appeals's
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 (b) or (c) claims may be reviewable by the
Tax Court.
Q-F3. Where should a taxpayer direct a request for judicial review
of a Notice of Determination?
A-F3. If the Tax Court would have jurisdiction over the type of tax
specified in the CDP Notice (for example, income and estate taxes),
then the taxpayer must seek judicial review by the Tax Court. If the
tax liability specified in the CDP Notice arises from a type of tax
over which the Tax Court would not have jurisdiction, then the taxpayer
must seek judicial review by a district court of the United States in
accordance with Title 28 of the United States Code.
Q-F4. What happens if the taxpayer timely appeals Appeals's
determination to the incorrect court?
A-F4. If the court to which the taxpayer directed a timely appeal
of the Notice of Determination determines that the appeal was to the
incorrect court (because of jurisdictional, venue or other reasons),
the taxpayer will have 30 days after the court's determination to that
effect within which to file an appeal to the correct court.
Q-F5. What issue or issues may the taxpayer raise before the Tax
Court or before a district court if the taxpayer disagrees with the
Notice of Determination?
A-F5. In seeking Tax Court or district court review of Appeals's
Notice of Determination, the taxpayer can only request that the court
consider an issue that was raised in the taxpayer's CDP hearing.
(g) Effect of request for CDP hearing and judicial review on
periods of limitation--(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 review or reconsideration. 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
expiration of the time for seeking review or reconsideration.
(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 determination resulting from
the CDP hearing becomes final by expiration of the time for seeking
review or reconsideration. 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.
(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
[[Page 3405]]
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 appropriate court,
plus 90 days.
Example 2. Same facts as in Example 1, except the taxpayer does
not seek judicial review of Appeals's determination. Because the
taxpayer requested the CDP hearing when fewer than 90 days remained
on the period of limitation, the period of limitation will be
extended to October 13, 1999 (90 days from July 15, 1999).
(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's determination. Once a taxpayer has exhausted his other
remedies, Appeals's 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's 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 section 6320 CDP hearing 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 or a district court?
A-H2. No. As discussed in A-H1, a taxpayer is entitled to only one
section 6320 CDP hearing 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 or a district 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 will
generally 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 issues will Appeals consider at an equivalent hearing?
A-I1. In an equivalent hearing, Appeals will consider the same
issues that it would have considered at a CDP hearing on the same
matter.
Q-I2. 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-I2. 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-I3. Will collection action, including the filing of additional
NFTLs, be suspended if a taxpayer requests and receives an equivalent
hearing?
A-I3. 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-I4. What will the Decision Letter state?
A-I4. The Decision Letter will generally contain the same
information as a Notice of Determination.
Q-I5. Will a taxpayer be able to obtain court review of a decision
made by Appeals with respect to an equivalent hearing?
A-I5. 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's denial of relief under section 6015(b) or (c). Such review
must be sought within 90 days of the issuance of Appeals's
determination on those issues, as provided by section 6015(e).
(j) Effective date. This section is applicable with respect to any
filing of a NFTL on or after January 19, 1999, and before January 21,
2002.
Robert E. Wenzel,
Deputy Commissioner of Internal Revenue.
Approved: January 13, 1999.
Donald C. Lubick,
Assistant Secretary of the Treasury.
[FR Doc. 99-1414 Filed 1-19-99; 10:56 am]
BILLING CODE 4830-01-U
