Tax Court In Brief | Evert v. Commissioner | Extending Notice Of Deficiency Deadline And Duress As An Affirmative Defense

• Published date: 16 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Tax, Trials & Appeals & Compensation, Income Tax, Tax Authorities
• Law Firm: Freeman Law
• Author: Freeman Law

The Tax Court in Brief - May 9th - May 13th, 2022

Freeman Law's "The Tax Court in Brief" covers every substantive Tax Court opinion, providing a weekly brief of its decisions in clear, concise prose.

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Tax Litigation: The Week of May 9th, 2022, through May 13th, 2022

• Lewis v. Commissioner, TC Memo. 2022-47| May 9, 2022 | Greaves, J. | Dkt No. 10007-20W
• Rogerson v. Commissioner, TC Memo. 2022-49| May 12, 2022 | Toro, J. | Dkt No. 5848-20
• Jackson v. Comm'r, T.C. Memo. 2022-50 | May 12 2022 | Vasquez, J. | Dkt. No. 19634-18L
• Harrison v. Comm'r, T.C. Memo 2022-6 | May 12, 2022 | Panuthos J | Dkt. No. 12170-19S

Evert v. Comm'r, T.C. Memo. 2022-48| May 9, 2022?| Marshall, A | Dkt. No. 12901-19

Opinion

Short Summary: Christian Evert timely filed her 2015 and 2016 tax returns, which were audited by the IRS. Evert sought an Appeals hearing to challenge the proposed adjustments. Through the proceeding, and as the applicable ASED (assessment statute expiration date) for 2015 was approaching, the Appeals officer gave Evert an option to consent to extend the limitations period for 2015, so he mailed to Evert a 2015 Form 872, Consent to Extend the Time to Assess Tax, along with Publication 1035. Publication 1035 explains various purposes for extending the ASED period. Evert signed and returned the Form 872, but thereafter she failed to present her positions and proof. Later, the IRS issued a Notice of Deficiency for 2015 and 2016. Evert timely sought judicial review of the Notice of Deficiency, alleging that she signed the Form 872 for 2015 under duress, that the Form 872 was thus invalid, and that the IRS failed to timely mail the Notice of Deficiency before the ASED for 2015 expired. At trial, Evert's and the Appeals officer's testimony conflicted as to the Form 872 matter.

Key Issues:

• Whether the Form 872 signed and submitted by Evert was ineffective based on duress such that the ASED for tax year 2015 had expired before the Notice of Deficiency was delivered?

Primary Holdings:

• Petitioner had the burden of affirmatively showing an apparently valid consent was ineffective due to duress, and she failed to carry that burden as to the Form 872. The testimony conflicted, but the Appeals officer's testimony was substantially corroborated by written notes and other documents Evert's testimony was unsupported and self-serving.

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