internal_revenue_service appeals_office san jose appeals ms-7100 s market st suite san jose ca vo pec number release date certified mail dear department of the treasury employer_identification_number person to contact vil this is a final adverse determination that you do not qualify for exemption from federal_income_tax under internal_revenue_code the code sec_501 as an organization described in section sec_501 of the code we have hereby revoked the favorable determination_letter to you dated date and you are no longer exempt under sec_501 of the code effective january we made the adverse determination for the following reason s you are not operated exclusively for exempt purposes within the meaning of sec_501 and sec_1_501_c_3_-1 as your activities primarily benefit private interests you do not engage primarily in activities that accomplish one or more of the exempt purposes specified in sec_501 more than an insubstantial part of your activities are in furtherance of a non-exempt purpose contributions to your organization are not deductible under sec_170 of the code you're required to file federal_income_tax returns on forms1120 u s_corporation income_tax return mail your form to the appropriate internal_revenue_service center per the form’s instructions you can get forms and instructions by visiting our website at www irs gov forms-pubs or by calling 800-tax-form if you were a private_foundation as of the effective date of the adverse determination we will consider you to be taxable private_foundation until you terminate your private_foundation_status under sec_507 of the code in addition to your income_tax return you must also continue to file form_990-pf return of private_foundation or sec_4947 trust treated as a private_foundation by the 15th day of the fifth month after the end of your annual_accounting_period we'll make this letter and the proposed-adverse determination_letter available for public inspection under code sec_6110 after deleting certain identifying information we have provided to you in a separate mailing notice notice of intention to disclose please review the notice and the documents attached that show our proposed deletions if you disagree with our proposed deletions follow the instructions in notice if you decide to contest this determination you may file an action for declaratory_judgment under the provisions of sec_7428 of the code in either e united_states tax_court the united_states court of federal claims the united_states district_court for the district of columbia you must file a petition or complaint in one of these three courts within days from the date we mailed this determination_letter to you contact the clerk of the appropriate court for rules and the appropriate forms for filing petitions for declaratory_judgment you can write to the courts at the following addresses united_states tax_court second street nw washington dc us court of federal claims madison place nw washington dc u s district_court for the district of columbia constitution ave n w washington dc note we will not delay processing income_tax returns and assessing any taxes due even if you file petition for declaratory_judgment under sec_7428 of the code please refer to the enclosed publication how to appeals an irs determination on tax -exempt status for more information about the appeals process you also have the right to contact the taxpayer_advocate_service tas tas is an independent organization within the irs that can help protect your taxpayer rights tas can offer you help if your tax problem is causing a hardship or you've tried but haven’t been able to resolve your problem with the irs advocate assistance please contact the taxpayer_advocate for the irs office that issued this letter you if you qualify for tas assistance which is always free tax will do everything possible to help you visit www taxpayeradvocate irs gov or call tas assistance is not a substitute for established irs procedures such as the formal appeals process tas cannot reverse a legally correct_tax determination or extend the time fixed by law that you have to file a petition in a united_states court if you have any questions contact the person at the top of this letter sincerely appeals team manager enclosure publication892 ce department of the treasury internal_revenue_service tax exempt and government entities irs exempt_organizations examinations 25th st rm mail stop ogden ut g date taxpayer_identification_number may form tax_year s ended person to contact 1d number contact numbers telephone fax number manager’s name 1d number manager’s contact number response due_date certified mail - return receipt requested dear why you are receiving this letter we propose to revoke your status as-an organization described in sec_501 c of the - internal_revenue_code enclosed is our report of examination explaining the proposed action what you need to do if you agree if you agree with our proposal please sign the enclosed form_6018 consent to proposed action - sec_7428 and return it to the contact person at the address listed above unless you have already provided us a signed form we'll issue a final revocation letter determining that you aren't an organization described in sec_501 after we issue the final revocation letter we'll announce that your organization is no longer eligible for contributions deductible under sec_170 of the code if we don't hear from you if you don’t respond to this proposal within calendar days from the date of this letter we'll issue a final revocation letter failing to respond to this proposal will adversely impact your legal standing to seek a declaratory_judgment because you failed to exhaust your administrative remedies effect of revocation status if you receive a final revocation letter you'll be required to file federal_income_tax returns for the tax_year s shown above as well as for subsequent tax years letter rev catalog number 34809f what you need to do if you disagree with the proposed revocation if you disagree with our proposed revocation you may request a meeting or telephone conference with the supervisor of the irs contact identified in the heading of this letter you also may file a protest with the irs appeals_office by submitting a written request to the contact person at the address listed above within calendar days from the date of this letter the appeals_office is independent of the exempt_organizations division and resolves most disputes informally for your protest to be valid it must contain certain specific information including a statement of the facts the applicable law and arguments in support of your position for specific information needed for a valid protest please refer to page one of the enclosed publication how to appeal an irs decision on tax-exempt status and page six of the enclosed publication the examination process publication also includes information on your rights as a taxpayer and the irs collection process please note that fast track mediation referred to in publication generally doesn’t apply after we issue this letter you also may request that we refer this matter for technical_advice as explained in publication please contact the individual identified on the first page of this letter if you are considering requesting technical_advice if we issue a determination_letter to you based on a technical_advice_memorandum issued by the exempt_organizations rulings and agreements office no further irs administrative appeal will be available to you contacting the taxpayer_advocate office is a taxpayer right you have the right to contact the office_of_the_taxpayer_advocate their assistance isn’t a substitute for established irs procedures such as the formal appeals process the taxpayer_advocate can't reverse a legally correct_tax determination or extend the time you have fixed by law to file a petition in a united_states court they can however see that a tax matter that hasn't been resolved toll-free and ask for taxpayer_advocate assistance if you prefer you may contact your local taxpayer_advocate at through normal channels gets prompt and proper handling you may call internal_revenue_service for additional information if you have any questions please call the contact person at the telephone number shown in the heading of this letter if you write please provide a telephone number and the most convenient time to call if we need to contact you thank you for your cooperation sincerely director eo examinations letter rev catalog number 34809f enclosures report of examination form_6018 form_4621 copy of form 1023ez copy of determination_letter dated publication publication letter rev catalog number 34809f form 886a department of the treasury - internal_revenue_service explanation of items name of taxpayer schedule no or exhibit year period ended 20xx date of notice october xx revised final report with governments rebuttal issues whether the organization qualifies for exemption from federal_income_tax under sec_501 of the internal_revenue_code facts incorporation they were formed for the following purpose was incorporated in the state of on june 20xx per the articles of the corporation is organized to perform religious charitable educational and recreational activities within the meaning of sec_501 c the corporation pledges that all its assets will be used exclusively for its exempt purposes specifically but without limitation the corporation is organized for the purpose of providing special services and activities to enrich the lives of the residents and staff of dba in filed form 1023ez streamlined application_for recognition of exemption under sec_501 of the internal_revenue_code on september 20xx and was granted exemption as a c on october 20xx the organization was selected for audit to ensure that the examined organization’s activities and operations align with its approved exempt status an organization exempt under c needs to be organized and operated exclusively for religious charitable scientific testing for public safety literary or educational_purposes or to foster national and amateur sports competition letter with form_4564 idr information_document_request dated march 20xx was sent to requesting description of activities and meeting minutes reply from social calendar and minutes from year to march 20xx was received on may 20xx organization sent description of activities with copy of replied that activities consisted of director meetings of officers and committees to discuss the needs of residents and how to address activities and events planned for residents management was also invited to listen to issues and concerns resident meetings were held to update residents on by-law revisions and election of officers one fundraiser event was held on may 20xx this event was a concert in the chapel by a focal pianist residents paid dollar_figure for tickets to event money raised was used toward beautification of the grounds at memorial contributions were received in honorarium of a past resident who passed away this money was used for the garden fund which paid for a covered gazebo and associated landscaping monthly speakers and performers of interest were provided to the residents free of charge has focused its efforts on providing education and entertainment at no charge to its residents form 886-a rev department of the treasury - internal_revenue_service page -1- form 886a department of the treasury - internal_revenue_service explanation of items name of taxpayer schedule no or exhibit ‘year period ended 20xx law sec_1_501_c_3_-1 of the regulations provides that in order to be exempt under sec_501 an organization must be both organized and operated exclusively for one or more of the exempt purposes specified in that section if an organization fails to meet either the organizational_test or the operational_test it does not qualify for exemption sec_1_501_c_3_-1 provides that an organization will be regarded as operated exclusively for one or more exempt purposes only if it engages primarily in activities which accomplish one or more of such exempt purposes specified in sec_501 an organization will not be so regarded if more than an insubstantial part of its activities is not in furtherance of an exempt_purpose sec_1_501_c_3_-1 provides that an organization is not operated exclusively for one or more exempt purposes if its net_earnings inure in whole or in part to the benefit of private shareholders or individuals sec_1_501_a_-1 of the regulations defines the words private_shareholder_or_individual in sec_501 of the code to refer to persons having a personal and private interest in the activities of the organization sec_1_501_c_3_-1 provides that an organization is not organized and operated exclusively for an exempt_purpose unless it serves a public rather than a private interest thus to meet this requirement it is necessary for an organization to establish that it is not organized for the benefit of private interests sec_1_501_c_3_-1 provides that an organization is not organized or operated exclusively for one or more exempt purposes unless it serves a public rather than a private interest to meet the requirement of this subsection the burden_of_proof is on the organization to show that it is not organized or operated for the benefit of private interests such as designated individuals the creator or his family shareholders of the organization or persons controlled directly or indirectly by such private interests sec_1_501_c_3_-1 states in part that the term charitable in sec_501 includes relief of the poor and distressed or of the underprivileged advancement of religion advancement of education or science lessening of the burdens of government and promotion of social welfare by organizations designed to accomplish any of the above purposes sec_1_501_c_3_-1 states that the term educational in sec_501 includes the instruction of the public on subjects useful to the individual and beneficial to the community sec_1_501_c_3_-1 provides that an organization may meet the requirements of sec_501 although it operates a trade_or_business as a substantial part of its activities if the operation of such trade_or_business is in furtherance of the organization's exempt_purpose or purposes and if the organization is not organized or operated for the primary purpose defined in sec_513 in determining the existence or nonexistence of such primary purpose all the circumstances must be considered including the size and extent of the trade_or_business and the size and extent of the activities which are in furtherance of one or more exempt purposes an organization which is organized and operated for the primary purpose of carrying on an unrelated_trade_or_business is not exempt under sec_501 of carrying on an unrelated_trade_or_business as exempt purposes charitable defined -relief of the poor and distressed or of the underprivileged -advancement of religion -advancement of education or science form 886-a rev page -2- department of the treasury - internal_revenue_service form 886a department of the treasury - internal_revenue_service explanation of items name of taxpayer schedule no or exhibit year period ended 20xx -erection or maintenance of public buildings monuments or works -lessening the burdens of government -promotion of social welfare by organizations designed to accomplish any of the above purposes revrul_69_175 1969_1_cb_149 describes an organization which was formed by parents of pupils attending a private school the organization provided bus transportation to and from the school for those children whose parents belong to the organization the organization did not qualify for exemption under sec_501 of the code because it served a private rather than public interest revrul_75_286 1975_2_cb_210 held that a nonprofit organization with membership limited to the residents and business operators within a city block and formed to preserve and beautify the public areas in the block thereby benefiting the community as a whole as well as enhancing the members' property rights will not qualify for exernption under sec_501 of code because the organization was organized and operated for the benefit of private interests by enhancing the value of members’ property revrul_73_411 1973_2_cb_180 shopping center merchants’ association a shopping center merchants’ association whose membership is restricted to and required of the tenants of a one-owner shopping center and their common lessor and whose activities are directed to promoting the general business interests of its members does not qualify as a business league or chamber of commerce under sec_501 of the code revrul_78_85 1978_1_cb_150 public park maintenance a nonprofit organization with membership open to the general_public that was formed by residents of a city to help preserve beautify and maintain a public park located in a heavily trafficked easily accessible section of the city that was commonly used by citizens of the entire city the organization’s support is derived from membership dues and contributions from the general_public is operated exclusively for charitable purposes and qualifies for exemption under sec_501 of the code rev - - in 326_us_279 the supreme court held that the presence of a single non-exempt purpose if substantial in nature will destroy the exemption regardless of the number or importance of truly exempt purposes the court found that a trade_association had an underlying commercial motive that distinguished its educational program from that carried out by a university and therefore the association did not qualify for exemption in easter house v united_states ci ct citing sec_1_501_c_3_-1 of the regulations without opinion 846_f2d_78 fed cir an organization is not operated exclusively for exempt purposes if it serves a private rather than a public interest application of law governments position organization is not described under sec_501 of the code or sec_1 c - a because you do not meet the organizational or operational tests if an organization fails either the organizational or operational_test it cannot qualify as an exempt_organization under sec_501 of the code organization is not described in sec_1_501_c_3_-1 because you are operating for the private interests of your members organization is a group of tenants of organization is made up of a team of volunteers and board members who represent the interests of those tenants living at and administration of you meet and conduct activities in connection with issues involving the operation form 886-a rev department of the treasury - internal_revenue_service page -3- form 886a department of the treasury - internal_revenue_service explanation of items name of taxpayer schedule no or exhibit year period ended 20xx organization has established a separate organization about the issues involving operation and administration of to represent the interests of those tenants organization conducts meetings with the residential council and residents to share concerns over communications social activities welcoming committees maintenance grounds and the need for volunteers the activities are directed at generally promoting business and benefiting your members who are tenants in father than accomplishing a c purpose your activities are also like those of the organization in revrul_73_411 even though the organization in revrul_73_411 applied for exemption under sec_501 of the code you are similar in that you do not qualify for exemption because you are serving the private interests of your members organizations purpose was described as providing special services and activities to enrich the lives of the residents and staff of activities minutes and social calendar reinforce this purpose review of your dba your goals and activities are organized for the interest and benefit of nature residents and are substantial in for this reason you are not operating exclusively for exempt purposes as described in sec_1_501_c_3_-1 as a result you do not satisfy the operational_test requirement to be recognized as exempt under sec_501 of the code and are not described in sec_501 of the code the group of parents in revrul_69_175 provided a cooperative service for their own residents and thus served their own private interests like this organization you were formed to provide benefits to your tenants in your case your activities consist of providing educational and entertainment activities for the tenants of residents to help enrich their lives at the you hold meetings with management of board members of and organization is dissimilar to the organizations described in revrul_70_186 and in the sense that you have not engaged in preserving or maintaining public property rather you are similar to the organizations described in revrul_75_286 and in 46_tc_47 in that your activities serve private rather than public interests your activities are limited to the tenants the money you collect are from honorariums and memorials which benefit the tenets by the beautification of the arbor which is not beneficial to the general_public as a whole organization does not satisfy the requirement of sec_1_501_c_3_-1 your activities do not directly further an exempt_purpose organization operates for the primary purpose of the residents of activities conducted benefit the residents at this would be considered private benefit to designated persons organization does not meet the requirements of sec_1_501_c_3_-1 because you are not operated exclusively for charitable purposes an organization is operated for charitable purposes only if it engages primarily in activities that accomplish one or more exempt purposes more than an insubstantial part of your activities furthers non-charitable purposes organizations activities do not fall within the definition of charitable as found in sec_1_501_c_3_-1 while you state your purpose is to benefit a charitable_class of individuals you have not demonstrated that the activities you conduct are exclusively charitable form 886-a rev department of the treasury - internal_revenue_service page -4- form 886a name of taxpayer ‘ department of the treasury - internal_revenue_service explanation of items schedule no or exhibit year period ended 20xx sec_1_501_c_3_-1 it of the regulations provides that an organization is not organized or operated exclusively for one or more exempt purposes unless it serves a public rather than a private interest thus it is necessary for an organization to establish that it is not organized or operated for the benefit of private interests such as designated individuals the creator or his family shareholders of the organization or persons controlled directly or indirectly by such private interests taxpayers position july the status it was granted in 20xx to present be revoked we would like to make the appeal to the appeals_office we have prepared this document to correct the assumptions made in this decision that are not correct and to show how we are promoting the general social welfare of our community in would like to appeal the recommendation made by the irs that the c as requested for the protest document we have included the facts from the 30-day_letter in appendix a the applicable law in appendix b the government's position on the applicable law in appendix c we are appealing the revocation of our 50i c status because we feel contrary to the findings that we as an organization promote the social welfare of our community by providing features on our campus that are available to the general_public and that promote wellness and therefore reduce government subsidized medical_expenses in our county - thus lessening the burden of government subsequently referred to as the independent living section of the entities sharing the campus and the residents pay a monthly fee to cover all room and board to the resident's association itself collects no fees or monies has no management responsibilities nor any administrative responsibilities of maintenance of common areas this is to correct the incorrect assumption related to revrul_70_186 and that our activities are limited to collecting monthly fees from owners of the condominiums we have no ownership in this property to cover common costs it should also be reiterated that any monies we have at our disposal come from memorial contributions and honorariums is comprised of ail residents of the is one of at the residents rent small units of - square feet and pay no separate utilities maintenance or __ fees everything is included in the monthly rent and all management is done by the staff of was originally conceived as a way to represent the interests of the independent living residents to management it should be understood that any increase in market_value from improvements to our campus financed by the improvements would provide only intangible benefits to the entire campus not the use of revrul_75_286 1975_2_cb_210 is inappropriate for our resident's association because we cannot enhance our property values with our healing garden since the property is not ours is not shared by the residents as we are simply renters not owners any exclusively the the seven entities on our campus see appendix d include consisting of occupants occupants where rent is subsidized all in the application of law governments position that we are tenants of are tenants of entire campus - not just those residents of skilled nursing unit with occupants memory unit with occupants and independent living entities share the common grounds of the campus unlike the statement we campus and any improvement we help achieve on that campus benefits the -_- independent living unit at assisted living unit with affordable housing units with occupants since we are a retirement community of age we began right away to lose residents when that happened memorials began to come in the we applied to the irs for 50i c status to honor the memorials we were receiving which the donors assumed to be tax deductible research showed healing gardens provided substantial health benefits see appendix e and are incorporated into many health care facilities hospices general acute care hospitals outpatient clinics assisted living and skilled nursing facilities mental and behavioral health facilities and special facilities such as rehabilitation pediatric and cancer hospitals and clinics we chose had already incorporated within the state of so form 886-a rev department of the treasury - internal_revenue_service page -5- form 886a department of the treasury - internal_revenue_service explanation of items name of taxpayer schedule no or exhibit year period ended 20xx to build a healing garden for our campus and named it the garden is centrally located on the campus and ts available not only to the entire campus but outside community members as well as the it took a long period of planning working with the draw up a blueprint that would allow us to build and enhance the healing garden incrementally as funds were available although the management has been very supportive of our effort they have informed us that the incremental maintenance_costs incurred are the responsibility of and not garden includes a covered arbor with furniture and abundant seasonal flowers a water feature that provides the soothing background sound of babbling springs and surrounding shade trees the memorials and honorariums that we receive make this possible our healing we are working with the organization working with the organization other butterflies as well as many other pollinators whose numbers have decreased drastically in the last few years in monarch waystation into our members into our healing garden to observe the transition of pupa to full-grown monarch - a very interesting phenomenon to increase the habitat we are to increase the habitat for monarch and county as part of this project we have joined a national consortium and established a garden this has drawn the entire campus and outside community feel that under law sec_50i c -i d we are lessening the burdens of the the residents of government by promoting better health through the enjoyment of our healing garden research showed that positive outcomes including a decrease in stress result from both a passive and active connection with nature in an outside healing garden and improve all five dimensions of wellness spiritual intellectual social physical and occupational increasing wellness and feelings of value and worth will result in a decrease in illnesses and medical_expenses and in the case of a retirement community these medical_expenses are subsidized by government programs such as medicare and medicaid therefore we feel this is a very appropriate use of the memorials and honorariums that we receive from time to time operationally our funds all coming from unsolicited contributions are dedicated to but we also provide non-monetary support to local organizations our time is also committed to ‘for the supporting such building self-propelled handicap carts for sewing stuffed rag dolls for children in sewing blankets for animals in the local animal shelter and serving as mentors to local high school students in a formal mentoring program whose curriculum was developed by the community efforts as providing a fundraising to be used in governments rebuttal to qualify for exemption under sec_501 of the code you must be both organized and operated exclusively for exempt purposes as described in sec_1_501_c_3_-1 you do not qualify for exemption because you are operated for the non-exempt substantial private benefit of your members to satisfy the operational_test under sec_1_501_c_3_-1 an organization must establish that it is operated exclusively for one or more exempt purposes you were formed for the non- exempt_purpose of providing a substantial private benefit to your members by providing special services and activities to enrich the lives of the residents and staff of in dba in organizations response of may1 20xx they provided minutes which included the directors meetings with officers and committee chairmen these minutes discussed the needs of residents regarding their living expectations of the minutes addressed activities and events planned form 886-a rev department of the treasury - internal_revenue_service page -6- form 886a department of the treasury - internal_revenue_service explanation of items name of taxpayer for residents meetings and to update the tenants on management activities at and concerns the meetings were conducted by the president residents association to attend and to listen to their issues invited schedule no or exhibit year period ended 20xx the program committee of the to the residents at no charge provided monthly speakers and performers has focused its efforts on providing education and entertainment at no charge to its residents to improve the traffic safety of its residents and neighbors it has the and has worked with the city of worked to enrich the environment by adding landscaping features such as the gazebo water feature trees flowers and butterfly garden it has also worked with management to plan an expansion of one of our food venues to incorporate garden area into eating area organization has stated the entire campus but also to the outside community the organization is surrounded by gates shrubs and buildings and is not openly available or easily accessible to the public the organization has not established that it advertises promotes or publicizes its special services and activities which enrich the lives of the residents and staff to the public or what level the general community is aware of these services and activities without making efforts to publicize the organization’s services and activities outside of its campus how would the public know what is available is centrally located on the campus and is available to minutes from march 20xx discussed a situation with personnel who are caregivers and those who are employed by agencies and other guests needing to wear badges anytime they are at exempt for children who are under the age to drive do guests need to report anytime they come on the property to enjoy the services of minutes have discussed outsiders wearing badges to identify who they are and if we should invite outsiders to the musical performance of ‘ no documentation was received from organization to substantiate the public use of or that the public is welcome to any of the activities at these activities provide a private benefit to the residents of minutes you provided substantiate the activities were for the benefit of the as well as the statement in your articles of incorporation stating corporation is organized for the purpose of providing special services and activities to enrich the lives of the residents and staff of dba in a substantial portion of your activities consists of providing social and recreational activities for your members your social events may conduct educational topics but they are designed for the members of your organization the activities of socializing and developing friendships do not fulfill c purpose in response dated july 20xx organization stated they provide non-monetary support to community efforts as providing a fundraising crawfish boil for the handicap carts for sewing blankets for animals in tne local animal shelter and serving as mentors to local high school students in a formal mentoring program whose curriculum was developed by the building self-propelled -sewing stuffed rag dolls for children in tobe usedin reply from organization did not list any of these activities nor were they identified in meeting minutes received from organization activities conducted by can't be conducted by individuals on their own behalf and then be included as part of activities conducted by activities they conduct must be done so in the name of are not activities conducted by must be able to stand alone in the activities form 886-a rev page -7- department of the treasury - internal_revenue_service form 886a department of the treasury - internal_revenue_service explanation of items name of taxpayer schedule no or exhibit year period ended 20xx in your reply of july14 20xx you-state you are appealing the revocation of our 50i c status because you feel contrary to the findings that you as an organization promote the social welfare of our community by providing features on our campus that are available to the general_public and that promote wellness and therefore reduce government subsidized medical_expenses in our county - thus lessening the burden of government’ organization has not established or identified how the garden is available to the general_public the property is surrounded by buildings bushes and gates which make it difficult for the public to access how would they know what is available organization stated in reply of july 20xx the resident's association itself collects no fees or monies has no management responsibilities nor any administrative responsibilities of maintenance of common areas this is to correct the incorrect assumption related to revrul_70_186 and that our activities are limited to collecting monthly fees from owners of the condominiums we have no ownership in this - property to cover common costs in response to the organizations revrul_70_186 and argument the property you are enhancing might not be owned by the tenets of beautification and enjoyment of the property the benefits derived from the organization's activities flow principaily to the members of the association and those related to the from memorial contributions and honorariums benefit the live but they do receive a significant private benefit from the by beautifying the property in which you the money you receive revrul_75_286 1952_2_cb_210 which holds in part that an organization with membership limited to the residents property owners and business operators within a city block and formed to preserve and beautify the public areas on the block does not qualify for exemption under sec_501 of the code is distinguishable because the organization in that revenue_ruling serves the private interests of its members within the meaning of sec_1_501_c_3_-1 of the regulations organization states that by providing the features of the healing garden which includes a covered arbor with furniture seasonal flowers water feature and surrounding shade trees you are promoting wellness and therefore reduce government subsidized medical_expenses in our country -thus lessening the burden of the government revrul_85_1 holds that lessening the burdens of government occurs only if the governmental_unit formally recognizes the activities of the organization to be its burden this objective manifestation may be evident in the interrelationship between the organization and the governmental_unit the organization's activities were an integral part of a larger governmental program and the organization funded governmental expenses the fact that a governmental_unit expresses approval of an organization’s activities doesn’t establish that the organization is lessening the burdens of government revrul_85_2 sets forth two requirements for an organization to qualify for exemption under sec_501 by lessening the burdens of government these requirements are an organization’s activities must be activities that a governmental_unit considers to be its burdens and the activities of the organization must actually lessen such governmental burdens an organization which claims to lessen the burdens of government must demonstrate that any private benefit received by individuals or businesses is both qualitatively and quantitatively incidental to its exempt purposes to be qualitatively incidental the private benefit must be a necessary concomitant of activities form 886-a rev department of the treasury - internal_revenue_service page -8- form 886a name of taxpayer department of the treasury - internal_revenue_service explanation of items schedule no or exhibit year period ended 20xx which benefits the public at large to be quantitatively incidental the private benefit must be insubstantial in the context of the overall public conclusion based on the above facts and analysis sec_501 of the internal_revenue_code because exclusively for charitable purposes the regulations define exclusively as engaging primarily in activities that accomplish one or more of the exempt purposes specified in sec_501 of the code benefits the private class of residents who reside at does not meet the operational_test for exempt status under has failed to establish that it is operated accordingly you do not qualify for exemption as an organization described in sec_501 and you must file federal_income_tax returns contributions to the organization are not deductible under sec_170 pincite 20xx exemption is revoked to effective date of exemption january form 886-a rev department of the treasury - internal_revenue_service page -9-


t c memo united_states tax_court michael e yoakum petitioner v commissioner of internal revenue respondent docket no filed date john divens for petitioner donna l pahl for respondent memorandum findings_of_fact and opinion laro judge petitioner petitioned the court to redetermine the following deficiencies in federal_income_tax and related sec_6662 accuracy-related_penalties year deficiency accuracy-related_penalty sec_6662 dollar_figure dollar_figure big_number dollar_figure big_number dollar_figure following concessions by the parties we are left to decide whether petitioner may for the respective years deduct net_operating_loss nol carryovers of dollar_figure dollar_figure and dollar_figure we hold he may not section references unless otherwise indicated are to the applicable versions of the internal_revenue_code rule references are to the tax_court rules_of_practice and procedure findings_of_fact some facts were stipulated and are so found the stipulation of facts and the accompanying exhibits are incorporated herein by this reference petitioner resided in pasadena california when his petition to this court was filed during and petitioner invested in the stock market primarily through the brokerage firm of paine webber jackson curtis paine webber douglas osborne osborne a paine webber employee was petitioner’s stockbroker the record contains sufficient evidence indicating that respondent determined appropriately that petitioner was liable for the referenced accuracy-related_penalties see sec_7491 because petitioner’s brief is silent as to any issue concerning that determination we treat petitioner as having conceded it in full see 91_tc_524 89_tc_46 on each day that paine webber was open for business petitioner visited its office and invested approximately dollar_figure to dollar_figure million in speculative securities from the time that petitioner arrived at paine webber’s office usually to a m he started drinking alcoholic beverages supplied by paine webber until he was high and happy but not stumbling drunk he authorized each of his trades and he was informed and knowledgeable as to all of his trades some of the trades resulted in gains and some of them resulted in losses during petitioner had exhausted most of his funds and he ceased his regular involvement with paine webber in or about petitioner and his wife sued paine webber osborne and others collectively the defendants in a u s district_court alleging that the defendants were liable for securities fraud negligence and breach of fiduciary duty in the handling of petitioner’s accounts the court dismissed the lawsuit as time barred by the applicable_period of limitations and for failure to plead properly as to fraud that dismissal was affirmed by the court_of_appeals for the ninth circuit on his federal_income_tax return petitioner claimed an dollar_figure deduction for a casualty or theft_loss on his and federal_income_tax returns petitioner claimed that he was entitled to deduct with respect to that loss nol carryovers of dollar_figure dollar_figure and dollar_figure respectively in the notice_of_deficiency for the subject years respondent determined that petitioner was not entitled to deduct any of the claimed nol carryovers but as to that petitioner was entitled to deduct a capital_loss of dollar_figure respondent determined in the notice_of_deficiency that petitioner was no longer entitled to deduct a dollar_figure capital_loss for either or opinion petitioner argues in his brief that he is entitled to deduct the nol carryovers at issue according to petitioner those carryovers are attributable to a theft that petitioner suffered in that in essence paine webber stole his money from him by supplying him with alcoholic beverages and allowed him to make unwise investments that benefitted them directly in the form of higher commissions we disagree with petitioner’s claim that he is entitled to deduct those nol carryovers sec_172 allows a taxpayer to deduct an nol for a taxable_year the amount of the nol deduction equals the sum of the nol carryovers plus nol carrybacks to that year sec_172 see also sec_172 nol defined and d c special rule as to casualty or theft losses allowable under sec_165 or absent an election to the contrary an nol for any taxable_year must first be carried back years and then carried over years sec_172 and petitioner as a taxpayer attempting to deduct an nol bears the burden of establishing both the existence of the nol and the amount of any nol that may be carried over to the subject years see rule a 349_us_232 115_tc_605 as part of that burden petitioner must prove that he is entitled to deduct his claimed theft_loss 292_us_435 see also 24_tc_525 16_tc_163 deductions are a matter of legislative grace and not a matter of right united_states v olympic radio the taxpayer_relief_act_of_1997 publaw_105_34 111_stat_950 amended sec_172 to require generally a 2-year carryback and a 20-year carryover for nols incurred in taxable years beginning after date petitioner in his brief claims without discussion that the 20-year rule applies we disagree the nol at issue if in fact incurred was incurred well before the effective date of the 20-year rule sec_7491 was added to the code by the internal_revenue_service restructuring and reform act of publaw_105_206 sec c 112_stat_727 effective for court proceedings arising from examinations commencing after date sec_7491 provides that the burden_of_proof shifts to the commissioner in specified circumstances petitioner makes no argument that sec_7491 applies to this case and we conclude that it does not see eg sec_7491 sec_7491 applies with respect to an issue only if the taxpayer meets certain requirements see also mediaworks inc v commissioner tcmemo_2004_177 television inc supra pincite 308_us_488 petitioner has not established that he incurred an nol or if he did the amount of any nol that may be carried over to the subject years first as to his claimed theft_loss sec_165 and c generally allows a taxpayer such as petitioner to deduct losses from the theft of property if he establishes that a theft occurred under the law of the jurisdiction where the alleged loss occurred 34_tc_688 the amount of the theft_loss 79_tc_714 affd 731_f2d_1417 9th cir and the date that the loss from the theft was discovered 34_tc_59 river city ranches ltd v commissioner tcmemo_2003_150 here petitioner through the limited record that he has chosen to build has not established any of the facts necessary to meet any of these requirements second even if petitioner had established those facts he has not proven that any portion of an nol that he incurred before was applied properly to one or more of the subject years petitioner must prove not only that he had an nol in a year a theft_loss is treated as sustained when discovered by the taxpayer sec_165 except to the extent that the taxpayer has a reasonable_prospect_of_recovery 90_tc_1248 before but that a portion of the nol was properly deductible in one or more of the subject years see 25_tc_1100 revd and remanded on other grounds 259_f2d_300 5th cir see also sec_6001 sec_1_6001-1 e income_tax regs taxpayers must keep sufficient records to establish the amounts of any items reported on their federal_income_tax returns that burden requires at a minimum that he show that he had an nol in at least one specified_taxable_year before he elected to forgo a carryback of that nol see sec_172 or if he made no such election the nol could not be fully deducted against income in the taxable years immediately preceding the taxable_year of the nol the nol as adjusted by the amounts deducted in carryback years could not be deducted against income in the taxable years immediately and chronologically following the taxable_year of the nol and that is no more than taxable years after the taxable_year of the nol that he seeks to deduct in and that and are no more than taxable years after the taxable_year of the nol that he seeks to deduct in those respective years see green v commissioner tcmemo_2003_244 lassiter v commissioner t c memo sec_172 allows a taxpayer to elect to relinquish the carryback period such an election must be made in a prescribed manner by the due_date including extensions for filing the taxpayer’s return for the nol year in which the election is to be in effect id petitioner has not met any of these requirements while petitioner in retrospect apparently recognized that he had not met this burden through the evidence that is contained in the record and attached to his brief an exhibit purporting to show his nol carryovers from through we give no consideration to that exhibit as it is not evidence see rule b see also harris v commissioner tcmemo_1998_332 documents attached to a brief are not evidence we sustain respondent’s determination as to this issue in full all of petitioner’s arguments have been considered and we have concluded that those arguments not discussed herein are without merit to reflect respondent’s concessions decision will be entered under rule


charles j weiss petitioner v commissioner of internal revenue respondent docket no 13643-11l filed date in an effort to collect p’s unpaid tax_liabilities r prepared for p a final notice_of_intent_to_levy and your right to a hearing levy notice r attempted to hand-deliver the levy notice during a field call on february but was deterred by p’s dog two days later r initiated the mailing of the levy notice by certified mail to p’s last_known_address r did not generate a new levy notice dated february he enclosed in the envelope the original levy notice dated february p received the levy notice on february p completed form requesting a collection_due_process cdp hearing for the tax years at issue and mailed it to r on either march or r received it on march which was a monday during the cdp hearing p argued that the period of limita- tions on collection of his tax_liabilities had expired p based this contention on the assertion that he intentionally had filed his request for a cdp hearing one day late such that he was entitled only to an equivalent_hearing which would not have suspended the period of limitations on collection r con- tends that petitioner’s request for a cdp hearing was in fact timely because it was filed within days of the date on which the irs mailed him the levy notice before r may levy against a taxpayer’s property r must provide written notice of the proposed levy and inform the taxpayer of his right to united_states tax_court reports an administrative hearing a levy notice must be sent or delivered to the taxpayer not less than days before the day of the first levy sec_6330 this notice must inform the taxpayer in simple and nontechnical terms of his right to request a hearing during the 30-day period specified in sec_6330 see sec_6330 held when the date appearing on a levy notice is earlier than the date of mailing the 30-day period prescribed by sec_6330 and b is calculated by reference to the date of mailing held further the directive that levy and lien notices should be drafted in simple and nontechnical terms does not require invalidation of a levy notice when there is a mismatch between the letter date and the mailing date held further p timely filed his request for a cdp hearing because he mailed his form to r and it was received by r within days of r’s mailing of the levy notice see sec_7502 and sec_7503 held further the period of limitations on collection was suspended when p timely requested a cdp hearing and it remains suspended see sec_6330 sec_6502 daniel j pilla for petitioner jonathan e behrens for respondent lauber judge in this collection_due_process cdp case petitioner seeks review pursuant to sec_6330 sec_1 of the determination by the internal_revenue_service irs or respondent to uphold a notice_of_intent_to_levy the irs served the levy notice on petitioner in an effort to collect his unpaid federal_income_tax liabilities for and which exceeded dollar_figure in the aggre- gate petitioner contends that the period of limitations on collection of these liabilities expired in date he bases this contention on the assertion that he intentionally filed his request for a cdp hearing one day late such that he was entitled only to an equivalent_hearing rather than to the cdp hearing that the irs afforded him if petitioner’s contentions are correct the collection_period of limitations would not have been suspended during the cdp process and his tax in that event would appear to be uncollectible liabilities respondent contends that petitioner’s request for a cdp hearing was in fact timely because it was filed within all statutory references are to the internal_revenue_code in effect at all relevant times we round all dollar amounts to the nearest dollar weiss v commissioner days of the date on which the irs mailed him the notice_of_levy see sec_6330 respondent acknowledges that the date appearing on the levy notice was at least two days earlier than the mailing date but argues that the mailing date dictates the start of the 30-day period where as here it is the later of the two dates cf bongam v commissioner 146_tc_52 on this point we agree with respondent because petitioner has raised no other meaning- ful challenge to the settlement officer’s determination we will sustain the proposed collection action findings_of_fact some of the facts have been stipulated and are so found the stipulation of facts and the attached exhibits are incor- porated by this reference petitioner resided in pennsylvania when he filed his petition in petitioner filed delinquent returns for in date the irs assessed the tax_liabilities shown on those returns along with additions to tax under sec_6651 sec_6651 and sec_6654 between and petitioner filed for bankruptcy three times these filings served to suspend the 10-year period of limitations on collec- tion set forth in sec_6502 after factoring in the suspensions for these bankruptcies the collection_period of limitations for the tax years at issue was set to expire in date with a view to collecting petitioner’s outstanding liabil- ities the irs assigned a revenue_officer ro to his case the ro prepared a letter 1058a final notice_of_intent_to_levy and notice of your right to a hearing the ro gen- erated this levy notice using the irs integrated collection system ics which affixed date as the date on the letter the ro appended to the levy notice copies of irs publication your rights as a taxpayer publication collection appeal rights publication what you the u s bankruptcy court for the eastern district of pennsylvania held that petitioner had attempted to evade or defeat his income_tax liabil- ities for the tax years 237_br_600 bankr e d pa that determination was affirmed on appeal with respect to all six years at issue united_states v weiss u s dist lexis at e d pa date aff ’d 276_f3d_582 3d cir united_states tax_court reports should know about the irs collection process and form request for a collection_due_process or equivalent_hearing the ro concurrently generated a separate letter 1058a concerning a joint income_tax_liability for that was addressed to petitioner’s wife betty hockenbury the ro made a field call later that day in an effort to hand-deliver the two levy notices to petitioner’s residence he was deterred by a dog blocking the driveway he left without delivering either notice opting to send them by certified mail instead the ro completed his other field calls that after- noon and went home without returning to his office on february the ro conferred with an irs colleague to ascertain whether a criminal investigation should be opened against petitioner his colleague got back to him at the end of the day with a negative answer on february the ro prepared an envelope in which the levy notice for was to be sent by certified mail to petitioner’s last_known_address the ro did not generate a new levy notice dated february he simply enclosed in the envelope the original levy notice dated february together with the form and the three irs publications listed above he attached to the envelope u s postal service usps form_3800 cer- tified mail receipt and usps form_3811 certified mail return receipt on the form_3800 he made the notation l1058 standing for letter and indicated that it was being sent to charles weiss that same morning the ro prepared a similar levy notice concerning the joint tax_liability addressed to petitioner’s wife on february the ro placed the envelopes containing the two levy notices with usps certified mail slips attached in the outgoing mail bin at his office he credibly testified that the office’s standard operating procedure was to have outgoing mail picked up from that bin by support staff two or three times a day the support staff would meter all out- going mail and put it into a postal box outside the irs office to be picked up by usps personnel because outgoing mail was stamped using a private postage meter it did not receive a usps postmark the date of the imprint of the private postage meter on the envelope in which each notice was mailed was date after placing the two levy notices in the outgoing mail bin the ro updated the integrated data retrieval system weiss v commissioner idrs through ics to indicate that the levy notices had been mailed to petitioner and to his wife on friday date the irs office in which the ro worked was closed the next three days for the weekend and for presidents’ day the u s post office to which mail from that irs office was taken was open on february but was closed on february and on february petitioner’s wife signed the usps form_3811 for each levy notice her signatures on these forms establish that the two levy notices were delivered to her and that she received them on that day the certified mail num- bers on the forms that she signed match the certified mail numbers on the forms that the ro completed the ro subsequently made an updated idrs entry con- firming that he had received return receipts back date stamped by post office on for charles weiss betty hockenb u ry that both return receipts are signed by b hockenb u ry and that the taxpayers had accepted delivery of the levy notices petitioner’s wife opened the envelopes took out the enclosed documents set them aside for her husband and threw away the envelopes when petitioner came home from work that day he reviewed the levy notices and the irs publications by reading the publications petitioner who is an attorney became aware of the collection actions available to the irs and of the alternatives potentially available to him he understood the difference between a cdp hearing which would entitle him to judicial review if he were dissatis- fied and an equivalent_hearing in which any collection relief would be solely at the irs’ discretion petitioner did not have the ability in date to pay his federal tax_liabilities which then exceeded dollar_figure he understood that enforced irs collection action would cause serious financial hardship and make it impossible for him and his wife to maintain their standard of living in response to the two levy notices petitioner prepared two forms request for collection_due_process or equiva- lent hearing one form requested a hearing with the ro’s entry for february reads as follows ro sent l1058 cer- tified with pub pub pub copy to charles weiss and betty hockenbury ltr delivery status mailed united_states tax_court reports respect to petitioner’s and tax years cdp form petitioner was in a hurry to file the cdp form and completed it at the last minute he inadvertently listed tax years instead of the years actually covered by the levy notice as his basis for requesting a cdp hearing he stated that he can’t pay the tax owed and that levy action will cause hardship he did not check the box captioned equivalent_hearing he dated this form date the other form requested a hearing with respect to the joint tax_liability of petitioner and his wife cdp form as the basis for requesting a cdp hearing he stated that he and his wife can’t pay the tax owed and that levy action will cause hardship he did not check the box captioned equivalent_hearing he dated this form date petitioner mailed one form in an envelope post- marked date and he mailed the other form in an envelope postmarked date the irs received both forms on monday date after the envelopes were opened the forms became separated from their envelopes in the absence of any identifying markings on the envelopes the irs was unable to determine which envelope had contained the cdp form and which envelope had contained the cdp form on date the ro sent petitioner a letter noting that he had neglected to list tax years on the cdp form two weeks later the so received from peti- tioner a revised form dated date that listed the six years that were actually at issue petitioner on this revised form did not check the box captioned equivalent_hearing he again stated as his basis for requesting a cdp hearing that he can’t pay the tax owed and that levy action will cause hardship there is nothing in the record to indicate that the irs sent petitioner any notice relating to or we find that he intended to list tax years and on the cdp form and that he wrote and by mistake as a holographic error we find that he made a similar holographic error on the cdp form in writing instead of he did receive notice of a joint liability with his wife for but he mailed in a separate form for that year weiss v commissioner a settlement officer so was assigned to petitioner’s case the so reviewed his tax transcripts for she properly verified that the assessments for each year were properly made there was a balance due for each year and the tax bill for each year was mailed to petitioner’s last_known_address within days of each assessment the so also verified that the statute_of_limitations did not bar collection of petitioner’s liabilities the end of the 10-year period specified in sec_6502 had passed in date however sec_6330 provides i f a hearing is requested under subsection a b the running of any period of limitations under sec_6502 relating to collection after assessment shall be sus- pended for the period during which such hearing and appeals therein are pending the so determined that the collection_period of limitations remained open because petitioner had timely requested a cdp hearing in making this determination the so concluded that the critical date was not date the date appearing on the levy notice but the date on which that notice was actually mailed to petitioner she examined the ics history transcript maintained by the ro which showed date as the mailing date she also examined the usps forms in the administrative file she concluded that the form_3800 completed by the ro on feb- ruary and the form_3811 signed by petitioner’s wife on february likewise pointed to february as the mailing date given that the irs office was closed on the intervening three days although it was uncertain whether petitioner had mailed the cdp form on march or the so found it timely in either event because both dates were within days of february on date the so sent petitioner a letter informing him that his cdp hearing request for had been received and was timely she indicated that she had scheduled a telephone cdp hearing for date and enclosed the forms petitioner would need to com- plete in order to seek a collection alternative petitioner communicated with the so by letter or telephone three times during date on none of these occasions did he disavow his desire for a cdp hearing or assert that he wanted only an equivalent_hearing united_states tax_court reports petitioner retained daniel pilla his current counsel on date during the cdp hearing one week later mr pilla contended that petitioner’s cdp hearing request was untimely because the date appearing on the levy notice date controlled in determining whether peti- tioner had filed his request within the 30-day period specified in sec_6330 the so disagreed and stated that she considered both forms to have been filed timely because the 30-day period was calculated from the mailing date petitioner during the cdp hearing did not challenge the dollar amount of his underlying tax_liabilities or seek a collection alternative apart from claiming that the collection_period of limitations for had expired he did not dispute the appropriateness of the proposed levy the so sought from irs chief_counsel a legal opinion con- cerning the timeliness issue in date she received an opinion concluding that the 30-day period for filing a cdp hearing request runs from the date the cdp notices were mailed the so telephoned mr pilla to inform him of the irs’ position and asked whether petitioner sought a collection alternative mr pilla said he would give her an answer by date on date having received no further communication from petitioner or his counsel the irs sent petitioner a notice_of_determination sustaining the levy to collect his unpaid tax_liabilities for peti- tioner timely petitioned this court for review opinion sec_6330 does not prescribe the standard of review that this court shall apply in reviewing an irs administrative determination in a cdp case the general parameters for such review are marked out by our prece- dents we generally review the appeals officer’s determina- tion as to the propriety of particular collection action for abuse_of_discretion 134_tc_280 114_tc_604 however where the validity of the underlying tax_liability is properly at issue we will review the matter de novo we apply de novo review where the taxpayer did not receive a petitioner paid the joint income_tax_liability totaling about dollar_figure in early weiss v commissioner notice_of_deficiency or did not otherwise have an opportunity to challenge the tax assessed against him see wadleigh t c pincite 114_tc_176 there is some uncertainty in our precedents as to whether a de novo standard of review applies where as here the con- troversy concerns a challenge to the 10-year collection_period of limitations petitioner argues that his tax_liability is uncollectible because the period of limitations on collection has expired if that is so respondent’s proposed collection action would be impermissible under an abuse_of_discretion standard as well as under a de novo standard because we must decide whether the so correctly determined that the limitations_period had not expired we would reach the same result regardless of which standard we applied cf 124_tc_69 explaining that whether reviewing for abuse_of_discretion or de novo we must reject an erroneous view of the law we base our reso- lution of all factual issues upon a preponderance of the evi- dence so that assignment of the burden_of_proof is unneces- sary see eg 138_tc_228 cf sec_7491 a governing statutory framework sec_6320 pertaining to tax_liens and per- taining to levies establish procedures for administrative and judicial review of irs collection action the commissioner must provide the taxpayer with written notice of lien filing or proposed levy action and inform the taxpayer of his right to an administrative hearing see 115_tc_35 such written notice must be furnished in one of three ways it must be given in person be left at the taxpayer’s dwelling or usual place of business or compare eg 134_tc_1 we have held that a challenge to the 10-year period of limitations on collection is a challenge to the underlying liability with crites v commissioner tcmemo_2012_267 at the second c issue here is whether the ap- peals officer verified that the irs assessed the penalty against crites with- in the statute_of_limitations this is a c issue because it is a ‘legal re- quirement’ that an appeals officer must consider at a cdp hearing see also proper standard of review for collection_due_process determina- tions irs notice cc-2014-002 date united_states tax_court reports be sent by certified or registered mail to the tax- payer’s last_known_address sec_6320 a - c a a - c a levy notice must be sent or delivered to the taxpayer not less than days before the day of the first levy sec_6330 this notice must inform the taxpayer in simple and nontechnical terms of his right to request a hearing during the 30-day period specified in sec_6330 see sec_6330 if the person requests a hearing in writing under subsection a b and states the grounds for the requested hearing such hearing shall be held by the irs appeals_office sec_6330 i f a hearing is requested under subsection a b the levy actions which are the subject of the requested hearing and the running of any period of limitations under sec_6502 relating to collection after assessment shall be suspended for the period during which such hearing and appeals therein are pending sec_6330 following the hearing the settlement officer issues a notice of determina- tion sustaining or declining to sustain the proposed collection action if the taxpayer disagrees with that determination he may petition for judicial review and the tax_court shall have jurisdiction with respect to such matter sec_6330 a taxpayer who fails to make a timely request for a cdp hearing is not entitled to a cdp hearing but he may be afforded an equivalent_hearing sec_301_6330-1 proced admin regs any relief afforded in an equivalent_hearing is discretionary with the irs the decision letter issued after such a hearing is not subject_to judicial review id para i q a-16 the collection_period of limitations is not suspended during an equivalent_hearing and the irs may thus proceed to collect the taxpayer’s liabilities id q a-13 see mcgowan v commissioner tcmemo_2008_125 petitioner’s argument assumes that sec_6330 operates to sus- pend the collection_period of limitations regardless of whether the irs in fact grants the taxpayer a cdp hearing only if the taxpayer has requested that hearing within the 30-day period referenced in sec_6330 and b respondent does not challenge this assumption which is consistent with the regulations see sec_301_6330-1 q a-g2 proced admin regs weiss v commissioner b commencement of the 30-day period the focus of the parties’ dispute is whether petitioner filed the cdp form within the 30-day period specified in sec_6330 petitioner sent his hearing request to the irs by certified mail on either march or date under the timely mailing timely filing rule_of sec_7502 petitioner is deemed to have filed his request on the date he mailed it moreover because march was a saturday and march was a sunday the 30-day window was extended until monday date and the irs received peti- tioner’s cdp form on that date see sec_7503 the cen- tral question therefore is whether march was within days of the levy notice if it was the running of the collection_period of limitations was suspended and continues to be sus- pended until days after the decision in this case has become final see sec_6330 sec_301_6330-1 example proced admin regs we have stated on several occasions that the 30-day period in which a taxpayer may timely request an appeals_office hearing begins on the day after the date of mailing of a levy notice under sec_6330 newsome v commis- sioner tcmemo_2007_111 93_tcm_1193 lopez v commissioner tcmemo_2001_228 82_tcm_469 t he taxpayer ha sec_30 days from the mailing of the levy notice to request a cdp hearing see also 127_tc_68 however we have not previously addressed a situa- although petitioner on the cdp form incorrectly listed tax years rather than he corrected this error by filing on date a revised form listing the six years cov- ered by the levy notice to which he was responding the parties do not dis- pute that the corrected form relates back to the date on which the cdp form was filed so that petitioner is deemed to have requested a cdp hearing for tax years ab initio petitioner was in a hurry to file the cdp form and completed it at the last minute it is clear that he made a holographic error on the original form and that he intended to request a cdp hearing for all six of the years covered by the levy notice not for which were never at issue or for which he addressed in a separate form submitted in response to the levy notice issued to his wife for that year cf 66_tc_105 finding that a petition is adequate where it con- tains some objective indication that the petitioner contests the deficiency determined by the commissioner against him united_states tax_court reports tion where the date appearing on a levy notice does not match the mailing date respondent contends that the mailing date controls in this scenario petitioner contends- contrary to the position a taxpayer would normally take- that the 30-day window for requesting a hearing under sec_6330 commenced on date the date appearing on the irs letter he asserts that he mailed the cdp form on date-ie days later-and that his request for a hearing was therefore untimely although we have found no precedent that addresses the precise question involved here a modest body of case law has developed on closely analogous questions when considering the timeliness of notices of deficiency under sec_6213 we have encountered situations where the date on the notice did not match the date on which the notice was successfully mailed to the taxpayer where the date on the notice was earlier than the date of mailing we have held that t he crit- ical date is the date the deficiency_notice was ‘mailed ’ 54_tc_1535 see eg lundy v commissioner tcmemo_1997_14 73_tcm_1693 ruling that the date of mailing is gen- erally the date that the commissioner actually places the notice_of_deficiency in the mail united tel co v commis- sioner 1_bta_450 by contrast when the date appearing on the notice_of_deficiency is later than the date of mailing we have held that the former date controls see loyd v commissioner tcmemo_1984_172 47_tcm_1450 jones v commissioner tcmemo_1984_171 47_tcm_1444 we recently applied the same line of reasoning in the cdp context see bongam v commissioner t c pincite that case involved a different 30-day period in the cdp regime namely the requirement in sec_6330 that the taxpayer petition this court within days of the irs notice_of_determination we held that the mailing date of the irs notice controlled when it was later than the date appearing on the letter in bongam the irs mailed a notice_of_determination to an address that was not the taxpayer’s last_known_address that notice was returned to the irs as undeliverable sev- eral months later on date the irs remailed the notice without changing the original date to the taxpayer’s weiss v commissioner last_known_address by regular mail the taxpayer received the notice at that address and petitioned this court within days of the mailing date relying on the deficiency cases cited above we held in bongam that when the date appearing on a deficiency_notice is earlier than the date of mailing ‘ t he critical date is the date the deficiency_notice was mailed ’ t c pincite quoting august t c pincite as we explained we see no reason why the above-described rules governing our defi- ciency jurisdiction should not also govern our jurisdiction in cdp cases thus allowing taxpayers the greatest opportunity consistently with the statutory language to obtain jurisdiction in our court we accordingly hold that the 30-day window prescribed by sec_6330 is cal- culated by reference to the notice_of_determination that was successfully sent to petitioner on date because petitioner actually received that notice and filed his petition within days we have juris- diction to hear this case id pincite this logic is equally applicable here we will employ the same principle of construction to irs notices issued under sec_6330 that we have applied to irs notices issued under sec_6330 when the date appearing on a levy notice is earlier than the date of mailing the 30-day window prescribed by sec_6330 and b is calculated by reference to the date of mailing in so ruling we are guided by the proposition that in determining whether we have jurisdiction over a given matter this court and the courts of appeals have given our jurisdictional provisions a broad practical construction rather than a narrow technical one see 68_tc_779 acceptance of petitioner’s submission would disserve the interests of most taxpayers by converting the cdp hearing in the scenario presented here into an equivalent_hearing immune from judicial review when a statutory provision is capable of two interpretations we are inclined to adopt a construction which will permit us to retain jurisdiction without doing violence to the statutory language 61_tc_97 petitioner asserts that the date appearing on the levy notice must be deemed to be the mailing date when there is a clear discrepancy and no other date was provided to the petitioner to support that proposition he cites jones v commissioner tcmemo_1984_171 47_tcm_1444 continued united_states tax_court reports petitioner errs in contending that the regulations point to a different conclusion they provide that a cdp hearing must be requested within the 30-day period commencing the day after the date of the cdp_notice sec_301_6330-1 proced admin regs see id para c hearing must be requested within days after the date of the cdp_notice notably these provisions refer not to the date on the cdp_notice but to the date of the cdp_notice the examples to the regulations indicate that the date of the cdp_notice is the date on which that notice is mailed see id subpara example concluding that the 30-day period begins to run the day after t he irs mails a cdp_notice of intent to levy to the taxpayer’s last_known_address c determination of the mailing date in deciding whether the so erred in sustaining the pro- posed levy the relevant question is whether she properly concluded that the 10-year period of limitations remained open the answer to this question depends on whether the cdp form was mailed by petitioner and or received by respondent within days of the date on which the irs mailed the levy notice generally speaking we have approved a settlement offi- cer’s reliance on tax transcripts to prove relevant facts see eg tornichio v commissioner tcmemo_2002_291 schroeder v commissioner tcmemo_2002_190 here the but his reliance is misplaced in jones the date on the notice_of_deficiency was later than the mailing date consistently with the authorities dis- cussed in the text we held that the date appearing on the notice con- trolled we stated we emphasize that we are not announcing a rigid rule under which the date stamped on the face of the notice will always be con- sidered the date the notice was mailed for purposes of sec_6213 we do not intend for example to shorten the period which existing law gives the taxpayer to file his petition when the date stamped on the notice is earlier than the date of delivery to the postal authorities id t c m cch pincite n for similar reasons petitioner errs in relying on 114_tc_492 where we relied on the regulations discussed in the text we there stated that the taxpayer had to request a cdp hear- ing within the 30-day period following the date of the notice and con- cluded that he had not requested a hearing within days of the issuance of the notice on date id pincite because feb- ruary was the date on which the notice was mailed our opinion in offiler is fully consistent with the conclusion reached in the text weiss v commissioner so reviewed petitioner’s tax transcripts and determined that the levy notice for was mailed to petitioner’s last_known_address on date we have held that a settlement officer may not rely solely on computerized tax transcripts where the taxpayer demonstrates an irregularity in the assessment procedure see jordan v commissioner tcmemo_2011_243 102_tcm_386 petitioner argues that he has identified an irregularity in the assess- ment procedure because the date on the levy notice does not match its mailing date assuming arguendo that petitioner is correct the so was required to do more than check his tax transcripts the so did more than check the tax transcripts she verified the mailing date shown on the transcripts by con- sulting the ics history transcript maintained by the ro which showed that the letter was mailed on february she reviewed the form_3800 that the ro completed on february the certified mail number on that form matched the certified mail number on the form_3811 that petitioner’s wife signed on february the so reasonably concluded that the form_3811 bolstered her determination that the levy notice had been mailed on february because the irs office was closed on the intervening three days the evidence at trial supported the so’s determination the testimonial and documentary_evidence established that the ro left the levy notice in the outgoing mail bin on feb- ruary that an irs staff person collected the notice from the mail bin and ran it through a private postage meter which imprinted february as the date and that irs staff placed the notice into a postal box outside the irs office for collection by usps personnel later that afternoon while it seems plausible that usps personnel collected the notice from the irs postal box on february the evidence does not conclusively establish that they deposited it into the u s mail that same day but it is immaterial to our conclu- sion whether the notice was actually mailed on february or february the so correctly determined that february the so testified that she had inquired whether a certified mail log ex- isted but the ro replied in the negative at that time the internal rev- enue manual irm did not require the creation of such a log when send- ing out levy notices see irm pt date united_states tax_court reports was the earliest date on which the levy notice could have been mailed that date was within days of march the date on which petitioner testified that he mailed the cdp form see sec_7502 moreover because march was a saturday and march was a sunday the 30-day window was extended until monday date the date on which the irs received petitioner’s cdp form see sec_7503 thus regardless of whether the levy notice was mailed on february or february petitioner’s cdp form was timely filed under sec_6330 by reference both to the date of its mailing and to the date of its receipt petitioner cites cases like 564_fedappx_656 3d cir and 92_tc_729 for the proposition that the irs must estab- lish the exact date on which a notice of this sort was mailed that is certainly true where as in those cases acceptance of one of the possible mailing dates as the actual mailing date would lead to the conclusion that the notice was untimely in this case by contrast both possible mailing dates for the levy notice lead to the conclusion that petitioner’s cdp form was timely filed ascertaining the notice’s exact mailing date is unnecessary here because it would not affect the out- come d petitioner’s other arguments petitioner contends that the levy notice was fatally defec- tive because it violated what he calls the ‘information’ requirement of sec_6330 that section provides that a levy notice shall furnish certain information to the tax- payer in simple and nontechnical terms including the right of the person to request a hearing during the 30-day period under paragraph petitioner acknowledges that the levy notice informed him of his right to request a hearing for essentially the same reasons petitioner errs in contending that the so abused her discretion by declining to determine whether he had mailed the cdp form on march or as he testified on march both dates are within days of february the earliest date on which the levy notice could have been mailed moreover regardless of when peti- tioner mailed the cdp form it was timely because the irs received it on march the due_date as extended by sec_7503 a settlement officer does not abuse her discretion when she refrains from making deter- minations that are immaterial to her decision weiss v commissioner within days but he says that this information was not communicated in simple and nontechnical terms because the 30-day period did not run from february the date on the levy notice but from the subsequent mailing date this argument faces several hurdles at the threshold first petitioner cites no authority for the proposition that congress envisioned a sanction for the failure of an irs notice to be drafted in simple and nontechnical terms second petitioner cites no authority for the proposition that sec_6330 which obligates the settlement officer to obtain verification from the secretary that the requirements of any applicable law or administrative procedure have been met includes the obligation to verify that irs communica- tions have been drafted in simple and nontechnical terms third if we were to assume that a settlement officer must verify this or that it is part of a challenge to the existence of the underlying liability petitioner cites no authority for the proposition that the failure to employ simple and non- technical terms in a levy notice would require invalidating the collection action where the failure does not prejudice the taxpayer’s ability to secure a cdp hearing in any event we have frequently upheld the validity of irs notices even though there was a mismatch between the letter date and the mailing date in bongam t c pincite the date appearing on the notice_of_determination was earlier than the mailing date as it was here our conclusion as to the notice’s validity was unaffected by the fact that the date appearing on the notice_of_determination does not match the date on which the notice was successfully mailed to peti- tioner going back many years we have reached the same conclusion regarding notices of deficiency and we have done so regardless of whether the taxpayer was aware of the actual mailing date see s cal loan ass’n v commissioner 4_bta_223 united tel co 1_bta_450 hurst anthony watkins v commissioner 1_bta_26 although a notice_of_deficiency like a notice_of_levy refers taxpayers to the date appearing at the top of the notice it is settled law that the date appearing on the notice of defi- ciency is not the date of mailing although the dates may coincide traxler t c pincite the directive that levy and united_states tax_court reports lien notices should be drafted in simple and nontechnical terms does not justify a different outcome here in a related vein petitioner argues that the so failed the verification requirement by paying insufficient heed to a section of the internal_revenue_manual irm cautioning that a levy notice should bear the same date as that on which it is mailed to the taxpayer see irm pt date the irm lacks the force of law and does not create rights for taxpayers anonymous v commissioner 145_tc_246 petitioner cites no case in which a settle- ment officer was found to have abused her discretion regarding verification by failing to follow an irm provision cf wadleigh t c pincite ndollar_figure declining to decide whether the procedures described in the irm are adminis- trative procedures that come within the verification require- ment of sec_6330 as explained above we have often upheld the validity of irs notices where the letter date did not match the mailing date finally petitioner contends that equitable_estoppel applies to bar respondent from relying on a mail date of the notice other than date petitioner asserts that the irs misled him by misrepresentation or concealment as to the existence of a fact-namely the date on which the levy notice was mailed-and that he suffered prejudice as a result his claim of prejudice is based on the notion that while he requested a cdp hearing what he really wanted was an equivalent_hearing that would not suspend the period of limitations on collection rather than check the equivalent_hearing box on the cdp form petitioner asserts that he aimed to achieve this goal by inten- tionally filing his cdp request one day late using the feb- ruary date appearing on the levy notice as his starting petitioner asserts that the irs publications accompanying the levy no- tice failed to alert him to the importance of the mailing date that asser- tion is incorrect publication reads the irs can’t levy or seize your property within days from the date this notice is mailed given to you or left at your home or office emphasis added even if an irs publica- tion offers erroneous information such publications are not authoritative sources of federal tax law see 330_f2d_91 9th cir nor can any interpretation by taxpayers of the language used in government pamphlets act as an estoppel against the government nor change the meaning of taxing statutes aff ’g tcmemo_1963_196 weiss v commissioner point he was prejudiced he says when his scheme was frus- trated by the so’s conclusion that he was entitled to the cdp hearing he had asked for because commencement of the 30-day period was calculated by reference to the notice’s mailing date petitioner’s estoppel argument is unpersuasive see 98_tc_695 estoppel is applied against the commissioner ‘with utmost caution and restraint ’ quoting 67_tc_612 the irs did not misrepresent or conceal any fact the date on the levy notice and the date imprinted on the envelope were visible for all to see if petitioner had not thrown away the envelope the mismatch would have been apparent to him petitioner’s testimony concerning prejudice moreover was wholly lacking in credibility in date he could not pay his federal tax_liabilities which exceeded dollar_figure he averred on the cdp form that he can’t pay the tax owed and that levy action will cause hardship petitioner is an attorney he studied the irs publications he received and he understood the difference between a cdp hearing and an equivalent_hearing his testimony that he actually sought an equivalent_hearing was implausible for at least four reasons he did not check the box for equivalent_hearing despite two opportunities to do so the irs during the pendency of an equivalent_hearing could begin immediate collection action which was the last thing petitioner wanted any relief afforded by the irs in an equivalent_hearing would be purely discretionary and not subject_to judicial review and the cdp hearing that he requested would entitle him to judicial review and defer irs collection action indefinitely thus achieving the goals he expressed in his hearing request for all these reasons we find no credible_evidence to support his claim of prejudice in consideration of the foregoing an appropriate decision will be entered f