Faisal Ahmed v. Commissioner of IRS ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 22-1091
FAISAL AHMED,
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
Appeal from the United States Tax Court
(IRS-1: 18-12876)
Tax Court Judge: Michael B. Thornton
Argued on November 17, 2022
Before: AMBRO*, KRAUSE, and BIBAS, Circuit Judges
(Opinion Filed: April 7, 2023)
*
Honorable Thomas L. Ambro assumed senior status on February
6, 2023.
Frank Agostino
Phillip Colasanto [Argued]
Agostino & Associates
14 Washington Place
Hackensack, NJ 07601
Counsel for Appellant
David Hubbert
Michael J. Haungs
Carl D. Wasserman [Argued]
Tax Division
Department of Justice
950 Pennsylvania Avenue, N.W.
Post Office Box 502
Washington, D.C. 20044
Counsel for the Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge.
In 2017, the Internal Revenue Service (IRS) moved to pe-
nalize Faisal Ahmed for his company’s delinquent trust fund
taxes. It first attempted to notify Ahmed of its proposed pen-
alties. Whether he received that notification is unclear. There
is no doubt, however, that the IRS went ahead and assessed the
penalties anyway. And when it later filed liens against his
property to secure the penalties, Ahmed took note and
2
immediately sought Collection Due Process review with the
IRS Independent Office of Appeals.
While Ahmed’s petition for review was pending, he sent a
large amount of money to the IRS along with instructions that
it be treated as a “deposit” to freeze the running of interest on
his disputed penalties. But rather than treat Ahmed’s remit-
tance as an interest-freezing deposit, the IRS applied it as a di-
rect payment to his tax bill. That move, the IRS contends,
brought a clean end to the matter. Without any remaining tax
liability to dispute, the Tax Court dismissed Ahmed’s petition
as moot.
We now turn back the clock. Ahmed’s petition was moot
only if the IRS properly treated his remittance as a payment.
That, in turn, depends on whether he sent money to the IRS
after it validly assessed his penalties. Because we identify am-
biguity in the record on this latter issue, we vacate the Tax
Court’s ruling and remand to the agency for further factfinding.
I. BACKGROUND
A. Aspen Construction’s tax troubles
Ahmed, a New Jersey resident, was President of Aspen
Construction Corporation. Like any employer, Aspen had to
pay to the IRS withheld federal income, Social Security, and
Medicare taxes from the wages of its employees—also known
as “trust fund taxes” because they are “held to be a special fund
in trust for the United States.” See 26 U.S.C. § 7501; see also
id. §§ 3102(a), 3402(a); United States v. DeMuro, 677 F.3d
550, 555 (3d Cir. 2012).
3
But Aspen did not do so. And it came to owe more than
$600,000 in trust fund taxes to the IRS. Without any recourse
against Aspen’s individual employees (who were credited with
withheld taxes when their net wages were paid), the IRS had
two options: (1) pursue Aspen directly, see 26 U.S.C.
§ 3102(b), or (2) shift liability to Ahmed, who oversaw As-
pen’s finances as President. The agency chose the second op-
tion, authorized by § 6672 of the Internal Revenue Code.
B. Section 6672 of the Internal Revenue Code
Section 6672’s “basic purpose is the protection of govern-
mental revenue.” Thomsen v. United States, 887 F.2d 12, 17
(1st Cir. 1989). It was enacted by Congress to address con-
cerns “that corporate employers might collect [trust fund] taxes
and fail to pay them over” to the IRS. In re Goldston, 104 F.3d
1198, 1200 (10th Cir. 1997). Guarding against this delin-
quency, § 6672 authorizes the IRS to collect trust fund recov-
ery penalties (TFRPs) from “responsible persons” at a com-
pany who willfully fail to pay over trust fund taxes. See, e.g.,
Kuznitsky v. United States, 17 F.3d 1029, 1032 (7th Cir. 1994).
A responsible person is “an officer or employee [who] . . . is
under a duty” to “collect, account for, and pay over” the tax for
an employer’s trust fund tax withholding and remittance activ-
ities. 26 U.S.C. § 6671(b); Kazmi v. Comm’r, 123 T.C.M.
(CCH) 1064, 2022 WL 601078, at *5 (2022). By targeting “re-
sponsible persons,” § 6672 allows the IRS “to pierce the cor-
porate veil and proceed against [the individuals] responsible
for collecting the offending company’s quarterly employment
4
taxes.”1 United States v. Farr, 536 F.3d 1174, 1177 (10th Cir.
2008).
TFRPs sought by the IRS must be “equal to the total
amount of the unpaid taxes,” Brounstein v. United States, 979
F.2d 952, 954 (3d Cir. 1992), and must generally be paid after
notice and demand by the IRS if not in dispute, see Kazmi,
2022 WL 601078, at *4. They are “presumptively correct and
the burden is on the taxpayer to overcome this presumption by
countervailing proof.”2 Psaty v. United States, 442 F.2d 1154,
1161 n.13 (3d Cir. 1971) (addressing § 2707(a) of the Internal
Revenue Code of 1939, the predecessor statute to § 6672).
Because holding an individual liable for a corporation’s
nonpayment of trust fund taxes is strong medicine, § 6672 im-
plements procedural protections for taxpayers. One such pro-
tection is advance notice of a proposed TFRP when the IRS
proceeds administratively: “No penalty shall be imposed
[through administrative action] unless the Secretary notifies
1
Although “[t]he United States is entitled to collect the non-
remitted taxes only once,” the IRS “need not attempt collec-
tions of the tax assessment from the corporate employer before
asserting the personal liability of a responsible person.” Reph
v. United States, 615 F. Supp. 1236, 1242 (N.D. Ohio 1985).
Moreover, there can be more than one “responsible person,” in
which case liability is joint and several for the entire amount
not paid. Id. at 1241–42.
2
In this way, personal liability under § 6672 differs from em-
ployer trust fund tax liability, which arises automatically as an
incident of the payment of wages and salaries in the employ-
ment relationship. See Kuznitsky, 17 F.3d at 1032 (citing 26
U.S.C. § 3403).
5
the taxpayer in writing . . . or in person that [he or she] shall be
subject to an assessment of such penalty.” 26 U.S.C.
§ 6672(b)(1). Typically, the IRS satisfies § 6672(b)’s notice
requirement by sending a “Letter 1153” that, among other
things, details the way a taxpayer may challenge the IRS’s pro-
posed TFRPs. See 14A Mertens Law of Fed. Income Tax’n
§ 55:139; see also, e.g., Mason v. Comm’r, 132 T.C. 301, 318
(2009). A Letter 1153 must be sent to the taxpayer’s “last
known address” at least 60 days before his TFRPs are assessed.
See Kazmi, 2022 WL 601078, at *5; 26 U.S.C. § 6212; see also
26 C.F.R. § 301.6212-2 (defining “last known address”). Pro-
vided that occurs, the taxpayer need not actually receive it for
a § 6672(b) notice to be valid. See Bonaventura v. United
States, 2009 WL 6042178, at *2 (N.D. Ga. Dec. 14, 2009) (col-
lecting cases), aff’d, 428 F. App’x 916 (11th Cir. 2011). And
if, upon proper notice, a taxpayer does not challenge the IRS’s
proposed TFRPs or pay them within 60 days, the IRS may “de-
finitively fix[]” liability through an assessment. Cf. Baral v.
United States, 528 U.S. 431, 434–35 (2000); see also, e.g.,
Kazmi, 2022 WL 601078, at *2; IRS Br. 7. If that is done, it
may obtain a lien on the taxpayer’s property. Kazmi, 2022 WL
601078, at *6 (citing 26 U.S.C. § 6321).
However, when the IRS fails at the outset to send a Letter
1153 to a taxpayer’s last known address (or otherwise fails to
provide a valid § 6672(b) notice), it may not later assess pro-
posed TFRPs administratively—at least absent waiver by the
6
taxpayer3 or a showing of inconsequential error.4 See, e.g.,
United States v. Appelbaum, 2016 WL 427944, at *3–4
(W.D.N.C. Feb. 3, 2016); United States v. Thomas, 2014 WL
1758681, at *3 (N.D. Fla. Mar. 20, 2014); Bonaventura, 2009
WL 6042178, at *5; Shaffran v. Comm’r, 113 T.C.M. (CCH)
1153, 2017 WL 633785, at *4 (2017); cf. Riley v. United States,
118 F.3d 1220, 1222 (8th Cir. 1997).5 Although the IRS may
3
“Section 6672 does not . . . restrict the traditional principles
of waiver.” Moore v. United States, 648 F.3d 634, 639–40 (8th
Cir. 2011). A taxpayer may waive § 6672(b)’s protections by
ratifying a Form 2751. See United States v. Seidel, 2008 WL
3822904, at *7 (N.D. Cal. Aug. 13, 2008) (citing I.R.M.
§ 5.7.4.7(3)). Ahmed, however, did not sign a Form 2751. See
App. 269–71.
4
When the record makes clear that a misaddressed Letter 1153
has, in fact, reached a taxpayer or his last known address, a
scrivener’s error on the mailing will not unsettle the legal suf-
ficiency of a § 6672(b) notice. The notice’s aim is to protect
taxpayers against government abuse of “summary collection
methods” available to the IRS in administrative collection pro-
ceedings. Cf. United States v. Jersey Shore State Bank, 781
F.2d 974, 979–80 (3d Cir. 1986), aff’d, 479 U.S. 442 (1987).
That purpose is served when taxpayers actually or construc-
tively receive warning of proposed TFRPs. See, e.g., In re
Chabrand, 301 B.R. 468, 477 (Bankr. S.D. Tex. 2003); Carlyle
v. Comm’r, 65 T.C.M. (CCH) 2457, 1993 WL 120348, at *2
(1993); Clodfelter v. Comm’r, 57 T.C. 102, 107 (1971), aff’d
527 F.2d 754 (9th Cir. 1975).
5
We note that “the IRS’ failure to comply with § 6672(b)
[does] not bar recovery of a tax liability or penalty in a civil
action.” Bonaventura, 2009 WL 6042178, at *5; see also How-
ell v. United States, 164 F.3d 523, 526 n.4 (10th Cir. 1998)
7
also deliver notice of proposed TFRPs “in person,” 26 U.S.C.
§ 6672(b)(1), it does not contend it did so in this case.
C. The IRS’s § 6672(b) notice to Ahmed
The IRS sent Ahmed a Letter 1153, but perhaps not to his
last known address. The record is too inconsistent to say for
sure. See App. 13 (Tax Court Op. 12 n.8) (observing that Ah-
med’s Letter 1153 and photocopied envelope list his street
number as “5B” whereas the address Ahmed included on his
Form 12153 lists his street number as “58,” along with a dif-
ferent zip code); App. 384 (Ahmed Collection Due Process
Supplement) (noting that “Taxpayer’s address was improperly
recorded,” as his street number was listed as “5” rather than
“5B.”); Transcript of Oral Argument at 9 (“I know that in one
of [the IRS’s] records, they had [the street number as “5”] and
another one they had 5B, 5B being the proper [street num-
ber].”). Adding to the confusion, Ahmed’s Letter 1153 was
returned to the IRS stamped “RETURN TO SENDER, UN-
CLAIMED, UNABLE TO FORWARD,” App. 272, and
(citing In re Goldston, 104 F.3d at 1200) (“We have held,
moreover, that the IRS may bring a judicial tax collection ac-
tion even if an invalid assessment prevents it from attempting
to collect taxes in an administrative proceeding.”). In those
cases, “the statutory notice provisions in [Section 6672(b)]”
may be avoided because “the filing of a complaint and service
of a summons provides the taxpayer with adequate notice of a
potential tax liability.” Bonaventura, 2009 WL 6042178, at *5
& n.1 (citing H.R. Rep. 104–506 at 39). In fact, “in the context
of a civil trial, which requires service of process and discovery,
the notice contemplated by § 6672(b) [does] not serve any real
purpose other than to act as a penalty to the IRS.” Id. at *5.
8
Ahmed stated in his declaration that he “does not remember
ever receiving the notice required by section 6672(b).” App.
12–13 (Tax Court Op. at 11–12 & n.6). Finally, there is no
indication that he ever received correspondence from the IRS
at the address to which the Letter 1153 was mailed. See App.
104–05, 112 (showing that the IRS’s other communications
were sent to Ahmed’s retained CPA).
D. Subsequent Administrative Action and Proceedings
After Ahmed failed to respond to his Letter 1153, the IRS
filed Notices of Federal Tax Liens (NFTLs) against him.
Those got Ahmed’s attention, such that he requested and par-
ticipated in a Collection Due Process hearing with the IRS In-
dependent Office of Appeals. His efforts were too little, too
late; the Commissioner issued a Notice of Determination in
May 2018 sustaining the NFTLs.
Ahmed next petitioned the Tax Court for a review of the
Notice of Determination. He claimed a host of procedural er-
rors, including the IRS’s failure to “provide verification that
the requirements of any applicable law and/or procedure were
satisfied.” App. 42. After the IRS moved for summary judg-
ment, the Tax Court sustained the Notice of Determination in
part and remanded in part. It determined, among other things,
that the agency’s Settlement Officer had failed to verify
properly that the IRS mailed notice of the proposed TFRPs to
Ahmed’s last known address per § 6672(b). The Court also
determined (correctly) that it did not have jurisdiction to con-
sider subsequent assessments for TFRPs the IRS made on April
11, 2019, after the agency’s initial Notice of Determination.
See Ruesch v. Comm’r, 805 F. App’x 12, 14 (2d Cir. 2020);
9
Freije v. Comm’r, 131 T.C. 1, 4–6 (2008), aff’d, 325 F. App’x
448 (7th Cir. 2009).
In May 2020, the IRS Independent Office of Appeals con-
ducted a supplemental Collection Due Process hearing follow-
ing the Tax Court’s remand. But before the Office of Appeals
could issue a new ruling, Ahmed remitted $625,000 to the
United States Treasury accompanied by a letter from his coun-
sel styling the amount as a “Deposit in the Nature of a Cash
Bond Under IRC § 6603.” App. 297. The letter stated that the
amount should be treated as “a deposit . . . within the meaning
of Rev. Proc. 2005-18,” an IRS procedure pertaining to the
treatment of remittances. App. 298. It requested that the IRS
continue to verify that the agency had satisfied the conditions
for assessment of the TFRP under Section 6672. And it made
one thing especially clear: the remittance “should not be posted
as a final payment to Taxpayer’s account.” Id.
The IRS did not heed Ahmed’s instructions. It deemed him
ineligible for a deposit under 26 U.S.C. § 6603 and treated his
remittance as a payment of tax. It posted Ahmed’s $625,000
in satisfaction of his TFRP liabilities on June 29, 2020, and
released his liens soon thereafter. It then moved the Tax Court
to dismiss his petition as moot.
Ahmed objected to the proposed dismissal of his petition
before the Tax Court, arguing that his remittance was merely a
deposit and that, in any event, he remained entitled to certain
procedural verification requirements. The Tax Court disa-
greed. It found that the Collection Due Process statute, 26
U.S.C. § 6330, limited its jurisdiction “to reviewing whether
the Commissioner’s proposed collection activity is appropri-
ate.” App. 26 (Tax Court Op. 7). It also observed that “once
10
the Commissioner concedes there is no unpaid liability for a
disputed year upon which a collection action could be based,”
a Collection Due Process proceeding is moot. Id. The Tax
Court thus dismissed Ahmed’s case for lack of jurisdiction.
Ahmed timely appealed.6
II. DISCUSSION
A. If Ahmed’s June 2020 remittance was a deposit ra-
ther than a payment, the case is not moot.
The IRS bears a heavy burden of establishing mootness.
See Duncan v. Governor of Virgin Islands, 48 F.4th 195, 204–
05 (3d Cir. 2022). It seems to acknowledge, as it must, that if
Ahmed’s June 2020 remittance was an interest-freezing de-
posit made pending the outcome of the Parties’ litigation, his
case is not moot. See, e.g., IRS Br. 23 (“Taxpayer’s case rests
on the central premise that his collection due process suit is
‘alive’ because he merely ‘deposited’ the $625,000 with the
Treasury rather than actually paying the tax.”); id. at 16(“[T]axpayer got the relief he sought when he paid his bill.
Case closed. But taxpayer will not take ‘yes’ for an answer.”).
The threshold question, then, is whether Ahmed’s remit-
tance was a deposit or a payment.
6
We have jurisdiction under 26 U.S.C. § 7482(a).
11
B. To distinguish a tax deposit from a payment of tax,
we look primarily for statutory guidance before re-
sorting to the common law.
Historically, the common law served as the exclusive
means by which courts classified taxpayer remittances like Ah-
med’s. The Supreme Court first recognized the concept of a
“tax deposit” in 1945 in Rosenman v. United States, 323 U.S.
658, 662–63 (1945). When that case was decided, the Internal
Revenue Code contained no deposit provisions. See VanCa-
nagan v. United States, 231 F.3d 1349, 1352 (Fed. Cir. 2000).
Following Rosenman, courts began to distinguish deposits
from payments by “look[ing] to the facts and circumstances of
an individual case . . . .” Ertman v. United States, 165 F.3d
204, 207 (2d Cir. 1999). This analytical framework developed
gradually into the “facts and circumstances test.” See, e.g.,
Moran v. United States, 63 F.3d 663, 667–68 (7th Cir. 1995),
overruled on other grounds by Malachinski v. Comm’r, 268
F.3d 497 (7th Cir. 2001); Blatt v. United States, 34 F.3d 252,
255 (4th Cir. 1994); Cohen v. United States, 995 F.2d 205,
208–09 (Fed. Cir. 1993); Ameel v. United States, 426 F.2d
1270, 1273 (6th Cir. 1970); Fortugno v. Comm’r, 353 F.2d
429, 435–36 (3d Cir. 1965); Syring v. United States, 2013 WL
4197143, at *3–7 (W.D. Wis. Aug. 15, 2013).
More than a half-century later, Congress began to enact
provisions specifying situations in which taxpayers can (or
cannot) suspend the running of interest on potential tax under-
payments by paying a deposit. See, e.g., American Jobs Crea-
tion Act of 2004, Pub. L. No. 108-357 § 842, 118 Stat. 1418,
1598 (codified as 26 U.S.C. § 6603). Where a statute classifies
a remittance as a deposit (or payment), we must follow it. See
Ertman, 165 F.3d at 207 (“We believe that in cases in which,
12
unlike Rosenman, the Internal Revenue Code explicitly defines
a particular type of remittance as a payment [or deposit], a fac-
tual inquiry is unnecessary . . . , for in such cases the statutory
delineation dominates over the circumstances of the particular
remittance . . . .”). But when no statute governs, we apply the
“facts and circumstances” test. See id.C. No statute governs definitively, so we must apply
the common law “facts and circumstances” test to
evaluate Ahmed’s remittance.
Based on the spotty record before us, no statutory provision
conclusively frames Ahmed’s remittance as a deposit or a pay-
ment. Although Ahmed styled his remittance as a “Deposit in
the Nature of a Cash Bond Under IRC § 6603,” App. 297, that
Section does not apply to TFRPs.7 Alternatively, § 6672(c)
permits a taxpayer to post a bond “within 30 days after the day
on which notice and demand of [a TFRP] is made” to ensure
that “no levy or proceeding in court for the collection of
[TFRPs] shall be made, begun, or prosecuted . . . .” 26 U.S.C.
§ 6672(c).
But if Ahmed did not receive a § 6672(b) notice, then he
had no opportunity to post a § 6672(c) bond, much less comply
with the latter’s procedural requirements. See generally 14A
Mertens Law of Fed. Income Tax’n § 55:140. This case, then,
is not one in which we are confident that “statutory delineation
dominates over the circumstances of the particular remittance
7
As the Tax Court recognized, “TFRP liabilities are imposed
under [Section] 6672, which is in chapter 68 in subtitle F of the
Code, rather than in any of the subtitles or chapters listed in
[Section] 6603(a).” App. 28 (Tax Court Op. at 9 n.4).
13
at issue.” Ertman, 165 F.3d at 207. Hence we turn to the “facts
and circumstances” test to account for the IRS’s possible fail-
ure to send a valid Letter 1153.
D. If the IRS failed to provide a § 6672(b) notice to
Ahmed, he made a deposit, not a payment, under
the “facts and circumstances” test.
There have been many statements of the facts and circum-
stances test in many jurisdictions. In general, the test considers
(1) “when the tax liability is defined” (i.e., whether it had been
assessed prior to remittance), (2) “the taxpayer’s intent upon
making the remittance,” and (3) “how the IRS treats the remit-
tance upon receipt.” Moran, 63 F.3d at 668. It also occasion-
ally considers (4) whether the taxpayer contests liability when
the remittance is made and (5) whether the remittance is “dis-
orderly.”8 See Boensel v. United States, 99 Fed. Cl. 607, 612–
13 (2011).
In a dispute like this one, where a taxpayer responds to a
purported assessment with a remittance styled as a deposit, it
strikes us that the taxpayer’s intent will always conflict with
the IRS’s treatment of the remittance. Likewise, we think it
plain that a taxpayer contesting liability will invariably submit
8
“[A] disorderly or random remittance (that is made by a tax-
payer arbitrarily, without regard to an orderly, apparent, or rea-
sonably possible ultimate tax liability, and that is made prior to
any determination by respondent of the taxpayer’s tax liability)
will generally be regarded not as a payment of tax but as a mere
deposit.” Risman v. Comm’r, 100 T.C. 191, 198 (1992) (citing
N. Nat. Gas Co. v. United States, 354 F.2d 310, 315 (Ct. Cl.
1965)); Fortugno, 353 F.2d at 435 (similar).
14
an orderly remittance that approximates the amount in contro-
versy based on a “good faith estimate.”9 See Huskins v. United
States, 75 Fed. Cl. 659, 673 (2007).
That leaves the decisive first factor: the timing of the as-
sessment. On this point, the IRS contends that Ahmed’s remit-
tance was a payment because it was made “in response to a tax
assessment . . . .” See IRS Br. 21. But Ahmed disagrees. Reply
Br. 19 (“A valid assessment is a statutory prerequisite for col-
lection of a tax liability and for treating a deposit as a pay-
ment . . . .”).
As we have discussed, it is not apparent from the record
that the IRS gave a legally sufficient § 6672(b) notice. There
is thus a distinct possibility that Ahmed’s remittance was made
pre-assessment. In turn, the IRS has failed to carry its heavy
burden of establishing mootness. See Duncan, 48 F.4th at 205.
It cannot show that Ahmed’s disputed liabilities were resolved
properly.
E. If the IRS provided a valid § 6672(b) notice to Ah-
med, much of his case is moot.
Importantly, ambiguity in the record can cut both ways.
Much like we cannot conclude that Ahmed’s disputed liabili-
ties were resolved properly, we also cannot say for certain that
9
After all, the purpose of a remittance like Ahmed’s is to pause
the running of interest on disputed penalties. It would make
little sense in this scenario “simply [to] dump[] funds on the
government in amounts which have no conceivable relation-
ship to the temporarily undetermined liability . . . .” N. Nat.
Gas Co., 354 F.2d at 315–16.
15
the IRS was wrong to treat his remittance as a payment. If his
Letter 1153 was sent to an appropriate address such that he re-
ceived a valid § 6672(b) notice, see supra note 4, then the IRS
did not err. That is true whether we apply the common law
“facts and circumstances” test or view Ahmed’s situation as
“dominate[d]” by the statutory delineation of § 6672(c), which
sets out procedural bond requirements Ahmed bypassed. Ert-
man, 165 F.3d at 207.
If Ahmed made a payment, his case is moot with one pos-
sible exception: he may be entitled to request an interest abate-
ment under § 6404(h), which authorizes the Tax Court to re-
view whether the IRS abused its discretion by failing to abate
interest on a tax deficiency caused by its own “unreasonable
error or delay.” See 26 U.S.C. § 6404(e), (h). To be sure, Ah-
med’s petition to the Tax Court was filed under § 6330, which
is designed to protect taxpayers from improper levies by
providing them a Collection Due Process hearing.10 But courts
10
We identify no merit in Ahmed’s challenges based on
§ 6330. See McLane v. Comm’r, 24 F.4th 316, 318–19 (4th
Cir. 2022); Greene-Thapedi v. Comm’r, 126 T.C. 1, 6–7
(2006). We also agree with the IRS that Ahmed’s lien with-
drawal request is moot because the agency has already released
his liens. Cf. Jivani v. Comm’r, 2018 WL 1660756, at *9 (T.C.
Apr. 5, 2018) (“Where, as here, the taxpayer seeks withdrawal
of a filed notice of Federal tax lien and the notice has neither
been withdrawn nor released, the consideration of a filed no-
tice of Federal tax lien is not moot merely because the taxpayer
has paid the related tax liability.”) (emphasis added). In fact,
Ahmed received the relief he requested in his June 9, 2020 Let-
ter: “Since taxpayer has remitted the deposit, he is requesting
that the lien be withdrawn or released so that he can continue
16
have held that “a petition ostensibly filed under [§ 6330] can
also be viewed as having been filed under section 6404(h)(1)
if the taxpayer had raised the issue of interest abatement in his
[Collection Due Process] hearing.” McLane v. Comm’r, 116
T.C.M. (CCH) 277, 2018 WL 4350097, at *10 (2018), aff’d,
24 F.4th 316 (4th Cir. 2022); see also Wright v. Comm’r, 571
F.3d 215, 220 (2d Cir. 2009).
The Tax Court offered no view on whether Ahmed raised
the issue of interest abatement in his Collection Due Process
hearing. If he did, the Tax Court had concurrent jurisdiction
under § 6404 to consider his abatement claims and to issue an
appropriate refund. See McLane, 2018 WL 4350097, at *11;
see also App. 94–95 (Collection Due Process Hearing Re-
quest). We leave this issue to the Tax Court to decide in the
first instance (if necessary) after the status of Ahmed’s remit-
tance is resolved.
III. CONCLUSION
The Internal Revenue Code sensibly implements proce-
dural safeguards that channel the IRS’s enormous power to
proceed administratively to collect taxes. When those safe-
guards are set in sequence by statute, the IRS must take care
not to skip steps. Given our concern that it may have done so
with a deficient § 6672(b) notice, we vacate and remand to the
Tax Court with instructions that the agency conduct further
factfinding. If it reveals that the IRS’s Letter 1153 to Ahmed
fell short of § 6672(b)’s requirements, the Tax Court should
treat his subsequent remittance as a deposit under the facts and
to obtain bonding for construction projects.” App. 299 (em-
phasis added).
17
circumstances test and resolve his challenges on the merits.
Alternatively, if Ahmed received proper § 6672(b) notice, the
Tax Court should consider whether he may seek interest abate-
ment under § 6404.
18