Refund Suit - Recipients of Summons & Complaint

The following text is from Sideman & Katz, Civil Tax Litigation treatise:

Richard J. Sideman & Steven Katz, Civil Tax Litigation - Sideman and Katz - Archive ¶1030
Civil Tax Litigation by Richard J. Sideman and Steven Katz - Archive ¶1030
https://www.wkcheetah.com/?refURL=https ... S_TAL_2500

In the district courts, the complaint is filed with the clerk of the court where venue is proper, along with the appropriate filing fee, now $350.[40] The clerk issues a summons to the plaintiff/taxpayer who then services the summons and complaint on the government. Fed. R. Civ. P. 4 provides that service in suits filed against the government is made by (1) delivering a copy of the summons and complaint to the local U.S. Attorney or sending a copy by registered or certified mail to the civil process clerk at the U.S. attorney's office; (2) sending a copy of the summons and complaint by registered or certified mail to the U.S. Attorney General in Washington, D.C.; and (3) sending a copy by registered or certified mail to IRS office that denied the refund claim.[41] Service of the summons and complaint must be made within 120 days from the date the complaint is filed.[42]

FOOTNOTES
[40] 28 USC §1914.[41] Fed. R. Civ. P. 4(i).[42] Fed. R. Civ. P. 4(m).


With respect to the third recipient of Summons and Complaint listed above (i.e., "IRS office that denied the refund claim"), I have the IRS Letter 105C (denying refund claim) which was signed by "Mia Sylve, Field Director" in "Accounts Management - Cincinnati." Does this mean that the third recipient would be Mia Sylve at the below address?

Mia Sylve, Field Director
Accounts Management – Cincinnati
Department of the Treasury
Internal Revenue Service
Cincinnati, OH 45999-0038

Thanks for any feedback you may provide!

Why are you not filing a Petition to Tax Court, before going to Federal District Court?

[ . . . ] With respect to the third recipient of Summons and Complaint listed above (i.e., "IRS office that denied the refund claim"), I have the IRS Letter 105C (denying refund claim) which was signed by "Mia Sylve, Field Director" in "Accounts Management - Cincinnati." Does this mean that the third recipient would be Mia Sylve at the below address?

I think the Mia Sylve address is your best bet for the third recipient.

Why are you not filing a Petition to Tax Court, before going to Federal District Court?

I cannot answer for DH001, but I'll chime in -- to point out that in the District Court, the taxpayer could litigate not only the tax and penalty (if any), but also the interest (if any). In Tax Court, you can litigate only the tax and penalty. I'm not sure that this is a big deal, but it is one difference between District Court and Tax Court.

Another consideration:

To take advantage of favorable precedent or to avoid unfavorable precedent should be the primary consideration in selecting the forum in which to litigate a federal tax liability. Attention should be given to the relevant decisions of the Tax Court, the Court of Federal Claims, and the appropriate district court, plus the decisions of the circuits to which an appeal would lie. The choice of forum for contesting a federal tax liability for a particular taxable year must be made before the deadline for filing of a Tax Court petition. [ . . . ] [O]nce a taxpayer has filed a timely Tax Court petition for a tax year, §6512(a) precludes the filing of a claim for refund or a refund suit for that year, except in certain special circumstances.

----Theodore D. Peyser, Refund Litigation, BNA Tax Management Portfolio No. 631, Bloomberg BNA (3d ed. 2012).

Another difference is that the taxpayer could have a jury trial in District Court if he or she wanted one. Generally, no jury trial would be available in the Tax Court.

Plus the obvious - to sue for refund, ya gotta pay first.

Nil - not obvious if you are suing for a refundable credit, not paid first.
Didn't know you Practiced law.
In Federal District Court - is there a risk the prevailing party will be awarded
attorneys fees from the losing party?
I've never seen Attorneys Fees awarded in Tax Court.

My skills in practice of law are exceeded only by my skills in Olympic Discus throw.

Tax Court has to follow section 7430, does it not?

[ . . . ] Tax Court has to follow section 7430, does it not?

Yes.

The Tax Court has jurisdiction under §7430 to award a taxpayer reasonable attorney's fees and other litigation costs where the taxpayer exhausts administrative remedies, substantially prevails, and meets certain net worth standards and the IRS fails to establish that its position was substantially justified.

---Richard A. Levine, Theodore D. Peyser & David A. Weintraub, Tax Court Litigation, BNA Tax Management Portfolio No. 630, Bloomberg BNA (4th ed. 2012).

Nil-in your lifetime have you ever seen a check from the IRS in satisfaction of a IRC Sec 7430 claim?
Have you ever known of anyone - who has known of someone - who actually got paid via Sec 7430?

Nil-in your lifetime have you ever seen a check from the IRS in satisfaction of a IRC Sec 7430 claim?
Have you ever known of anyone - who has known of someone - who actually got paid via Sec 7430?

I can't answer for Nil but, based on my quick search, it appears that that section 7430 recoveries may be more common in cases filed in federal district courts than they are in cases filed in U.S. Tax Court. An example of one in the Tax Court is Powell v. Commissioner:

The Powells appeal the decision of the Tax Court that denied a portion of the fees requested under 26 U.S.C. § 7430, which the Powells incurred in prior litigation before the Tax Court and our court. We conclude that the Tax Court erred in denying fees incurred in the prior appeal before this court and the Tax Court. We also determine that the Tax Court abused its discretion in finding that $75 per hour constituted a reasonable hourly rate for the Powells' attorneys in the Tax Court phase of the case. Accordingly, we reverse and reform the decision of the Tax Court.

---from Powell v. Commissioner, 891 F.2d 1167 (5th Cir. 1990).

Other cases where taxpayers prevailed against the Internal Revenue Service under section 7430 to recover attorney's fees or other costs (these are cases that began in a federal district court):

---Newnham v. United States, 813 F.2d 1384 (9th Cir. 1987)

---Miller v. Alamo, 983 F.2d 856 (8th Cir. 1993).

---Pate v. United States, 982 F.2d 457 (10th Cir. 1993).

I don't know Jesse Morreale personally, but he just (less than a month ago) won a Tax Court 7430 award.

I don't know Jesse Morreale personally, but he just (less than a month ago) won a Tax Court 7430 award.

Which would be Morreale v. Commissioner:

https://scholar.google.com/scholar_case ... _sdt=4,192

Because no special factor applies, we conclude that petitioner is entitled to an award at the statutory rate. Applying that rate ($200 per hour) to the reasonable litigation hours proven (74.8 hours), we come to $14,960. To this we will also add the cost of filing his petition, which is $60 as well as $14 for its mailing. Consequently, we award petitioner [Jesse Morreale] reasonable litigation costs of $15,034.

---Morreale v. Commissioner, case no. 24762-17, T.C. Memo. 2021-90 (July 15, 2021).

Thanks for feedback! Favorable precedent and opportunity for jury trial are reason taxpayer prefers District Court (Refund Litigation) versus Tax Court (Deficiency Litigation).

There are many reasons a case would be filed in District Court and not Tax Court. I know because when I filed for a refund of the penalty IRS assessed against me in 2005 for a 2000 matter (if you know anything about my history you will understand why the liability was assessed when it was), it had to be in District Court.