5th Circuit: Party is taxpayer under Taxpayer Assistance Order statute if property seized by I.R.S. to pay spouse's tax

J Thomas Black
Board Certified, Consumer Bankruptcy Law- Texas Board of Legal Specialization
Posted on Sep 27, 2015

A couple in Louisiana filed separate tax returns, and the husband incurred a tax liability to the I.R.S. So the IRS seized a certificate of deposit from the taxpayer's wife, which she claimed to be her separate property.

She filed for a Taxpayer Assistance Order (TAO) through the Taxpayer Advocate Service (TAS). They denied her relief. She then filed an administrative claim for refund, which was also denied. 

She then sued the government in U.S. District Court, and the court ruled that she wasn't a "taxpayer"  for purposes of the TAO statute and even if she was, the filing of the TAO did not toll or stop the running of the 9 month statute of limitations to sue the government, which had run before she filed suit. 26 U.S.C. Sec. 7811, 7811(d).

On appeal to the 5th Circuit Court of Appeals, the Court ruled that the wife is considered a taxpayer under the Taxpayer Assistance Order statute, and that the filing of a TAO tolls the 9 month statute of. limitations for filing a claim for refund, and reversed and remanded the case. Rothkamm v. U.S.A.; Internal Revenue Service, 5th Cir. 2015.

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