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Berkun v. Commissioner of Internal Revenue

United States Court of Appeals, Eleventh Circuit

May 25, 2018

ALAN M. BERKUN, Petitioner - Appellant,

          Petition for Review of a Decision of the U.S. Tax Court Agency No. 018437-15 L

          Before MARTIN, JORDAN, and WALKER, [*] Circuit Judges.


         If the 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.


         Mr. 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 Revenue Service.

         In 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.

         The IRS 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.

         On 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.

         Ms. 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.

         Mr. 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 Crimmins.

         On 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 following entry:

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 received it.

         Despite 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 ...

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