know call the case of alan berkman versus the commissioner of the internal revenue service focus with this case is about and i put these following facts they can be found the government's brief pages three through six one the appellant was convicted of of tax crimes two this tax criminal conviction in the eastern district of new york resulted in a criminal judgment for taxes a restitution basis osment him about three hundred ninety thousand dollars three the restitution base assessment form the grounds for the iris collection activity that is the still in miami the revenue officer went to the parents address on the tax returns and it was or formed yet again that the parent was incarcerated let me ask let me ask you a question because you're raising a constitutional argument that regardless of what the i r s says regulations say in a situation where the i r s knows or has information that the tax payers incarcerated they have to provide notice to the prison facility right that's one of your arguments and as your constitutional argument well i want to put this i explicitly reference due process so the whole point about providing notice with taxpayer of iris collection activity it's it's all in the soup so to speak you know judge dorgan this is what we're talking about and this is why the ira as i know but it just says the last known address that's what the provision requires right that's what the regulation requires regulation acquires the last known address address and then and then there's the sixty three thirty dash ones but it says but again that regulation which is three zero one point six three three zero dash one a one it says the notice of intent to levy must be given in person left at the dwelling or usual place of business is the taxpayer that's two and three or sent by certified or registered mail return receipt requested to the tax payers last known address which would then provides a cross reference to the regulation or sixty two tie of by your be your position is that constitutional due process requires that the notice be sent to a prison facility if the government knows that a taxpayer is incarcerated yes right that's your argument yes and in addition to that even under the regulation that the iris knew that at my client's last known address that is they had a clear and concise clear concise knowledge of where he was actually located i have two questions about this particular argument first of all was it raised in the tax court yes i believe it was judge i believe that this issue was properly raised and  a violation of due process that he that that by not notifying him at the prison he would violated due process was that argument made the duper constitutional due process argument no my view the my client's trial attorney didn't couch it in terms of constitutional due process and right of that the men ok that's my first point i can when i have is whether this particular notice is required under due process even if it was preserved because prior to in recent years anyway this provision was amended to add this notice so per so presumably these levees occurred in a part without with any hearing prior to the united into this of this provision and presumably it did not violate due process then and so my question is whether this notice the absence of this notice really is a due process problem or whether due process provisions but the dusenberry case from supreme court was a two thousand and two issue only is the issue is really whether there it is is whether the levy the amount of the levy has been determined right that's already been determined the amount of in at least in the know is intent to levy issue to my client was in addition to the three hundred ninety thousand dollars restitution based assessment that there was interest there i which is why the number ballooned to well over seven hundred thousand so my client would be able if given the they could hearing and was not not available to him on the equivalency hearing that he did have that they get gave him that from which he couldn't appeal at the time i would say that would have been a a legal fact possibility because this this case that i'm talking about the client case just was just recently issued so it wouldn't have been something that any diligent taxpayer or tax attorney would have known to have raised at that time but but i would like to him to the custody of the federal bureau of prisons on a tax charge nonetheless that adap point the government written large in the iris a particular is on clear and concise notice that attacks bear criminal address at the federal at the mind boot camp that's about forty five minutes down the road it's located next to my niece you did you raise that argument is it in your briefs as such and did you raise it oh i had thought that through out you were taking a position and there's statements i believe that you've made in the brief that the last known address was the tax was that was what was on his tax return no doubt that's of that's the government's position that you know but you haven't made a specific argument that they that there was clear notice of his last known address at the prison and therefore that was that that's they didn't comply with the statute i don't think you've made that argument  think i think to the to the contrary judge i think it's i thought your argument was the due process claim primarily due process claim and then they whether the whether receipt of the notice is is sufficient to trigger the thirty day period due process claim is that the notice has to go to the federal institutional my client is located which is that which is that's a separate question but it ties into because that has to be my client's last known address no it under the statute i'm talking about a pure if the due process doesn't work for the reasons i've suggested if you want to because it's waived whatever you don't have you haven't made an argument leaving due process out of it that the last known address was and therefore i wonder where the your adversary had the opportunity to respond to it if that's the case you know then you know that that i think that's a serious i mean it's a problem well i  point the points of the brief which i think that is made ok but but putting that point aside going back to the what i think really happened here is that the revenue officer he just didn't want to go to the to the facility and i don't understand be a member as e j panel going to an m d c going to a federal correction it's a pain in the butt like no one likes doing it but not withstanding based upon what the revenue officer knew not only based upon the criminal conviction based upon what joint daniels told him based upon what the neighbor told him based upon what my client's criminal defense attorney told him the iris objectively and the revenue officer subjectively knew he was at the miami boot camp didn't he also that according to what he was told he was going to get out of prison sometime in early november i believe he's and that's when the letter was sent he was supposed to get out november twentieth and the letter was sent november third  so if he sends a letter to the prison your client may not get it i don't know what because he had to go to a halfway house it's not like he was just released back in the general population so he goes to a halfway house which thirteen with the eck was circle address matter at all in your constitutional argument no and one thing i wanted to highlight to that this court you have to think back to what was going on concerned that people are going you know so security numbers ripped off and people improperly getting tax returns sent to a b o p to scilly that they weren't titled to do so in this context it was perfectly reasonable for my client and i believe he actually couldn't good morning me please the court my name is janet bradley and i'm with justice department and i represent the athlete the commissioner in this appeal i want to start off with the observations of judge walker it's the government's position appellant did not raise the argument that the bureau of prison address was his last known address here the statute sixty three thirty  to see allows the i r s per the statute to send the collection due process pre levy notice to the person's last known address by registered or certified mail here there's no dispute that in this specific situation that the commissioner sent it properly to the taxpayers last known address and the last known address is presumably the address used on the tax payers last for even aside the fact that it wasn't raised can you really with a straight face say that that his house was his last known address where there's all this evidence that the i r s officer knew that he has in prison been told on i think three separate occasions in september that he was in prison it was he was in prison for the very girlfriend she said he was no longer there and the and the criminal defense lawyer said he was still in print they said he was in prison all this happened in september and the notice didn't go out until november but let me address that number one here the address was the eck was address where the girlfriend mr thomas was living and the tax payer here provided to the i r s a tax authorization form which permitted ms thomas to receive his tax information at that address while the revenue officers may have known obviously he had this criminal he pled guilty here to a variety of criminal charges there and while miss thomas may have said that he wasn't living there at no point did she say that she wasn't in communication with the taxpayer here so there is nothing here in the record and again here the conversations and i agree it was probably about three times mr hoffman spoke to the i r s and again the i r s kept saying to mr hoffman that it could not discuss his tax mat matters with mr hoffman because he had no power of attorney so i think some of that was just very informal off the cuff kind of remarks and again here the taxpayer has a real as a real world matter there's no question that crimmin he was in jail we knew he was not jail not you're not arguing that he didn't know what we knew he we knew it was sentenced in september fifteenth he learned that he was incarcerated he called the prison in fact no one answered  did not call the prison after that and then on september twenty second he went to the course address no one was home he spoke to a neighbor who said he was the prisoner was in jail and then on september twenty fourth he spoke to hoffman who said the same thing petitioner was in prison and was was going to be released to a halfway house in november well again all of these things happened neighbors he was told independently hoffman told them there was no question about that and my question is why would nice and an extra copy to the prison of the notice even though maybe it wasn't quite by the board statute doesn't require us to send it to a variety of addresses here again the taxpayer who wasn't interning could have designated as ultimately with mr levy as this power of attorney could have designated earlier mr levy or hoffman as his power of attorney and in those situations we would have sent a copy well even if if if in fact it was his letter prison was his last known address then one has an uneasy feeling about this arguments to the right places well and and again i would take issue with that to the extent again here that while the taxpayer was in prison he could have and should have he believed that the mailing any collection mailing again here this is for two thousand and four taxes and the conviction or that he pled guilty in two thousand and twelve so he knew that this was coming he did not voluntary make any attempt to pay him out do and he could have when he was in prison on either on his two thousand and thirteen return he could have and that would have been due notice to the commissioner that fat was his last known address isn't there an allegation although the i r s tonight is receipt isn't there an allegation that some time in early twenty fourteen and before he filed this twenty thirteen tax return he sent a letter to the i r s telling him to send all tax correspondence to him in prison again and that correspondence with respect to maybe updating is in an attempt to update his last known address i believe all of that correspondence and we made the argument in our brief and below that all predated his two thousand and thirteen return i understand but it's one thing to say that the statute gives you a  known address which is the address listed in the last file tax return but the regulation also says that although the last known address is the address that appears in the taxpayer's most recently filed and properly process federal tax return unless the i r s is given clear and concise notification of a different address why isn't a letter from the taxpayer telling the i r s send my tax notices mail like cetera to me in prison why isn't that clear and concise notification of a different dress pursuant to the regulation tax court i believe specifically addressed that they filed his return on april fifteenth and therefore that was the now the last known address but one could ask whether that letter which was sent in january became operative again as soon as the agent prove he was still in prison well again that was informal communications from mr hoffman the girlfriend and again at no point did it and again miss thompson had that authorization to receive it miss that notice was received and we got the return receipt within about i think it was a week that it was actually received at that address if we find that the notice if we were to conclude that they should jurisdiction under the statute right because here because mr birkin's request for a hearing was passed thirty days after the november third here he had due process there was in this instance and a quibble and hearing not a c d p hearing and at that time mr burke and did in fact raise various arguments as to why there should be alternatives to collection he  matter of the stamp collection and that he needed his open heimer funds to pay for his support and the i r s considered that the office of appeals considered both of his arguments and decided that neither had any merit insofar as he was actually living with his mother for a variety of years so didn't need the support and again the open heimer account was that there was readily available to go to these purported proceeds from a stamp collection i mean that was really you know fairly attenuated attenuated here in the situation so the office of appeals fully considered and these would have been the arguments i'm assuming that the taxpayer would have raised if he had filed a timely request for a hearing for a c d p there really was no difference in the context of what arguments he could have pressed here here he made all those arguments and i'll go back to judge walker's point in in the taxpayer's opening brief as we point out on our brief they they go silent on the last known address and make the argument the due process argument and again here in the context of the statute in the regulations the taxpayer had due process he raised the arguments that they were fully considered and the fact of the matter is the point that there's a notice now required under due process and he says well because you can you can get more money at this hearing based on the interest well again that's that's a new argument to me it wasn't made in the appellants opening brief and i checked they didn't file a reply brief so the klein case that was sided this morning by counsel i'm not familiar with it i haven't reviewed it i i'm i'm i'm at a loss to address what happened here it was just recently decided well i guess you could have submitted a twenty eight j letter to the court and to counsel and i would have been happy to review it but again here in the context of a restitution based assessment he's wasn't allowed to consider test that he owed it or the amount whatever this interest issue was i don't know again he hasn't made the argument it was really a question of just how the irish could go about you could make arguments about what what they could do to together that was really what it was i mean in other words the amount owed was not in controversy it was just a question the method of collection well we  way well and again here mr burkman did brace those concerns he had a full and fair opportunity in the context of an equivalent hearing which an equivalent hearing is essentially the same thing as the c d p the same procedures here he raised those concerns and the i r s the office of appeals considered the arguments that he made about the stamp collection and the alternative about needing his ira open heimer account to pay for his support we considered that and we determined that he was living with his mother for a number of years so he didn't need that amount to live someplace or to pay for food and again the stamp collection these were based on his allegations of his stamp collection what the value of it in some insight in some account and again it was this girlfriend with which he had i believe three or four children and he was living in the home with her we considered  at the office of appeal and just decided that that they weren't valid and even if this were a c d p and even if it was a notice of a determination there was no abus discretion which would be the standard to determine whether or not the i r s office if appeals are considered collection alternatives and rejected it so the government's view in some is essentially that the notice was sent pursuant of the statute it was in fact delivered we got a return receipt at that address his girlfriend with whom he had three children bring living had a valid tax information authorisation for there was nothing in the record that she wasn't communicating with mr burke i'm visiting him in prison or whatever and again mr burke i'm had the opportunity knowing how long he was going to be in prison to actually put that address on his return that would have given the commissioner notice of where he was at the time and again when he was getting out not getting out these again were very informal communications there was no power of attorney and we scented where we should of he had the equivalent hearing and just to address the i don't the courthouse and address as this court in peterson and rimando also addressed c d p cases here the regulations interpret ing the alternative to a c d p hearing as an equivalent hearing or reasonable he had due process and at this point we would just ask this court affirm the dismissal of by the tax court for lack of jurisdiction and there to nial of his motion to vacate have just want to ask you about something before you sit a misunderstanding that maybe the allegation there again is a no this is the affidavit by you're an agent so no i understand but to revoke the form i believe there's a form that must be completed to do so so i don't know if the i thought your are you know was there was no indication to us that he didn't want to rely on the relationship with mr thomas and so the question that comes to my mind in response to that is well what about when he told your agent that he didn't though he wanted to revoke this this form that relied on her i don't have that in front of me does that have a specific date as to w the date of the notice the the city i mean the notice went out on november third so the january subsequent here informal meeting at his mother's house was after the notice was properly set of yeah but i mean you don't want to so you'll want to rethink your argument that he never indicated to us there was any problem with us relying on mr thomas  not prior to the time that the notice the pre levy notice was sent ok thank you thank you regarding mr hoffman my client's criminal defense attorney and whether his indication to the revenue officer the legal significance of it your honor i submit because the and was my client's criminal defense attorney in the very case that gave rise to the criminal based tax judgment and was the genesis of the restitution base assessment hoffman i would think being the attorney of record in the case against the federal government the begat the the tax assessment would have had the authority to inform and represent my client before the iris granted he did not have the iris form twenty eight forty eight but i think under the circumstances the fact they didn't have the official form our file could have been done better yes but i think the at the root of the day the iris knew where my client was and so putting aside you know that certain niceties were filed by the lack of the power of attorney form twenty eight forty eight mr crimmins knew after time that he issue found at record on page ten it's pretty clear to me that the i r s was again put on notice not only referencing my client's criminal to tax case in the eastern district of new york  and writing and let me know if of his b o p inmate number where he was residing at the the the minute boot camp the federal penitentiary i'm not too too far from here and det letter that that  record six page ten was in response to a letter sent by the iris employee miss jennings to my client so i think we look at the has my client to get the proverbial get out of jail card free all you get is a hearing before the tax court to determine whether the iris collection procedures were reasonable under other circumstances and to raise this very new case that i granted i did not file a twenty eight j letter and inform opposing counsel but for what it's worth the case is client versus commissioner twenty seventeen case of the tax court one forty nine it is my three hundred one thousand dollars but sitting here today with interest that number has ballooned to is well over seven hundred thousand so this is real money to my client and i submit that under the circumstances given the facts that this concludes our cases for this morning the court will reconvene tomorrow morning at nine o'clock