ALAN M. BERKUN, Petitioner - Appellant,
COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee.
Petition for Review of a Decision of the U.S. Tax Court
Agency No. 018437-15 L
MARTIN, JORDAN, and WALKER, [*] Circuit Judges.
JORDAN, CIRCUIT JUDGE:
Internal Revenue Service intends to levy on a
restitution-based assessment against a taxpayer who is
imprisoned, must it provide notice to him at his prison
address? Alan Berkun, who is appealing the tax court's
dismissal of his petition for review for lack of
jurisdiction, believes due process requires such notice.
Alternatively, he argues that the time period for a taxpayer
to appeal a notice of intent to levy begins to run only when
the notice is actually received.
Berkun pled guilty in 2010 to a number of federal charges,
including filing a false 2004 income tax return. See
United States v. Berkun, No. 1:11-cr-214 (E.D.N.Y). The
district court sentenced him to 72 months of imprisonment and
ordered him to pay $390, 595 in restitution to the Internal
January of 2013, Mr. Berkun sent a handwritten letter to IRS
Agent Laurian Jennings. He provided the IRS his Miami federal
prison mailing address and asked that all notices in
reference to his case be sent to him there. On April 15,
2013, Mr. Berkun filed his 2012 tax return, and on April 15,
2014, he filed his 2013 tax return, both from the Federal
Correctional Institution in Miami. On both tax returns he
listed his address as 9121 Equus Circle in Boynton Beach,
Florida, where he lived with his girlfriend, Kimberlee
Thomas, and their three children before he went to prison.
assigned Revenue Officer Steven Crimmins to collect the
restitution-based assessment against Mr. Berkun from the
false 2004 tax return. On September 15, 2014, Officer
Crimmins learned that Mr. Berkun was still incarcerated at
the Federal Correctional Institute in Miami. That same day,
Officer Crimmins called Mr. Berkun at the prison, but no one
answered the phone. Later that month, Officer Crimmins
visited the Equus Circle property, but no one was there and
he left his card. After this visit, Mr. Berkun's attorney
contacted Officer Crimmins and told him Mr. Berkun was
scheduled to be released to a halfway house some time in
November 3, 2014, the IRS issued a "Notice of Intent to
Levy" (NOIL) under 26 U.S.C. § 6330 to collect from
Mr. Berkun the unpaid restitution assessment from 2004. The
IRS sent this notice by certified U.S. Mail, with return
receipt requested, to Mr. Berkun's Equus Circle address.
Mr. Berkun had previously designated Ms. Thomas as a person
authorized to inspect, request, and receive his confidential
tax information, and she signed and returned the return
receipt card on behalf of Mr. Berkun. The IRS received the
signed card on November 6, 2014.
Thomas informed Officer Crimmins on November 20, 2014, that
Mr. Berkun no longer lived with her at the Equus Circle
property. The following day, Mr. Berkun was released from
custody to home confinement in his mother's home in
Delray Beach, Florida, because Ms. Thomas said he could
longer live with her at the Equus Circle property.
Berkun and Officer Crimmins first spoke on January 5, 2015.
On January 21, 2015, they met for the first time at the home
of Mr. Berkun's mother. At this meeting, Officer Crimmins
gave Mr. Berkun a number of tax-related documents, including
a copy of the NOIL dated November 3, 2014, and a copy of the
restitution-based assessment accrual with interest,
reflecting a balance of $704, 665.25. Mr. Berkun says he
first became aware of the NOIL at this meeting with Officer
February 20, 2015, the IRS received Mr. Berkun's Form
12153, "Request for a Collection Due Process or
Equivalent Hearing, " regarding the NOIL. When Mr.
Berkun filed the form, Officer Crimmins recorded the
Will process and forward [Mr. Berkun's Form] 12153 to
appeals. Appeal is timely because the taxpayer received the
[NOIL] when I hand delivered it on 1/22/15 and the CDP was
received on 2/20/2015. When the original [NOIL] was mailed it
was sent to the address of his girlfriend at Equus Circle in
Boynton Beach. He was in prison at the time and never
Officer Crimmins' view, the IRS Office of Appeals
concluded that Mr. Berkun's appeal was untimely. Counting
from November 3, 2014, the date the NOIL issued, the Office
of Appeals concluded that Mr. Berkun's attempt to protest
the collection action was beyond the statutory 30-day period
allowed for a "Collection Due Process" hearing
under 26 U.S.C. § 6330(b)(1). On April 30, 2015, the
Office of Appeals, therefore, held a telephonic
"equivalent hearing, " rather than a CDP hearing,
with Mr. Berkun to discuss his concerns about the timing of
his receipt of the NOIL and the ...