NTA 2023 Annual Report and 2024 Purple Book (1/15/24)

The National Taxpayer Advocate has issued her 2023 annual report (here allowing download of the Full Report, the Executive Summary, and the NTA Purple Book Compilation of Legislative Recommendations, and Research Reports). The Full Report and its components have much that tax procedure enthusiasts will want to consider. I bullet point here some of the items that caught my eye on a quick overview. I may come back with more detail later.

• MOST LITIGATED ISSUES – NATIONAL TAXPAYER ADVOCATE RECOMMENDATIONS TO MITIGATE DISPUTE, pp. 169-171, beginning here.
• The 2024 Purple Book: Compilation of Legislative Recommendations, here.

Some of these are repeats of carryover issues from earlier years. For example, her recommendations on § 6751(b), which I discuss in Musings on Proposed § 6751(b) Regulations and the Potential Demise of Chevron Deference (Federal Tax Procedure Blog 1/8/24; 1/15/24), here.

My only comments are:

1. The TA continues emphasize so-called assessable penalties which, under the law now, do not require a procedure like the notice of deficiency procedure to permit judicial contest before assessment. She requests legislation to permit pre-assessment review in the Tax Court. I certainly am not against prepayment remedies. The only case she mentions is Farhy v. Comm’r, 160 T.C. No. 6 (Apr. 3, 2023), on appeal to 6^th Circuit (No. 23-1179) where the taxpayer in fact got a prepayment (but not preassessment) remedy for his complaint. Of course, if Farhy were correctly decided (meaning that the IRS can determine the subject penalties but has no authority to assess them), the IRS would or should be the one clamoring for legislation to fix the assessment authority issue (which presumably would be fixed in future by the TA's proposed legislation). As best I can tell, the IRS is not and is rather appealing on the basis that Farhy was incorrectly decided (as I think it was). See Tax Court Holds that IRS Has No Authority to Assess § 6038(b) Penalties for Form 5471 Delinquencies (Federal Tax Procedure Blog 4/3/23; 4/23/23), here; and Regulations Interpreting Pre-1996 Code Provisions; Fixing Farhy (Federal Tax Procedure Blog 5/11/23; 5/12/23), here. (Note that the latter "fix" depends on the continued viability of Chevron which is being argued in two cases—Loper Bright and Relentless—in the Supreme Court this Wednesday, January 17.)