The IRS Office of Chief Counsel said in a program manager technical advice memorandumPMTA2012-14, that a settlement officer may adopt the CAP decision as part of the determination in the CDP hearing but is not required to do so.
1) Section 6330(c)(4) does not preclude consideration during a CDP hearing of an issue that was raised and considered in a CAP hearing when the CAP and CDP hearings were requested simultaneously. The Settlement Officer may adopt the CAP decision as part of the determination in the CDP hearing.
2) There is no legal requirement that a taxpayer be given the right to a CAP hearing for a proposed levy when a CDP hearing is requested at the same time. The IRS Office of Appeals ("Appeals") may decide for policy reasons not to provide a CAP hearing for a proposed levy when the taxpayer has requested a CDP hearing about the same proposed levy.
The taxpayer may make simultaneous requests for CAP and CDP review when the Service’s collection action is a NFTL filing or levy. Under CAP, Appeals’ administrative decision is final and the review is limited to the specific collection action proposed or taken. See IRM 188.8.131.52.1(9). Under CDP, Appeals’ determination is subject to judicial review and the scope of Appeals’ review is broader. See I.R.C. § 6330(c), (d); IRM 184.108.40.206.1(10).
For example, a taxpayer may, with certain exceptions, challenge the existence or amount of his or her underlying tax liability in a CDP hearing. See I.R.C. § 6330(c)(2)(B). A taxpayer may not challenge the amount of his or her liability in a CAP hearing. See IRM 220.127.116.11.1(2).
A taxpayer may request a CAP hearing at the same time as a CDP hearing request in order to receive an expedited review, generally five days. See IRM 18.104.22.168.1(9). CDP consideration by contrast will generally take longer.
The more expedited review provided by CAP may be desirable, for example, when a NFTL filing is interfering with a transaction or a levy causes the taxpayer economic hardship, and the taxpayer wants the NFTL withdrawn or the levy released as quickly as possible.
Consequently, many taxpayers will request CAP consideration at the same time as their request for a CDP hearing.
If you have a Tax Lein or Tax Levy, contact the Tax Lawyers at Marini & Associates, P.A. for a FREE Tax Consultation at www.TaxAid.us or www.TaxLaw.ms or Toll Free at 888-8TaxAid (888 882-9243).
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