While generally notices and other communications from the IRS are considered received by the taxpayer if they are delivered to the home by certified mail and signed for, such was not the case with a Letter 1153, received by and signed for by the taxpayer’s son but ultimately determined not to have made its final step on its journey from the IRS into the taxpayer’s hands.

The reason it failed to reach its destination was that the son “threw” it “somewhere” in the basement. Which makes me wonder, what other reasons might be acceptable for not receiving the letter?

In the case of Letter 1153, which advises the taxpayer of the right to appeal the proposed assessment and request an Appeals conference, actual receipt is generally required. In this case, the Tax Court sided with the taxpayer, Antonio Lepore, after the IRS Appeals Office sustained the filing of a notice of federal tax lien against his property to collect assessed trust fund recovery penalties for unpaid unemployment taxes (see Tax Court Finds Tax Lien Wasn’t Delivered by Son to Father).

Lepore contended that the Appeals Office erred because it did not permit him to contest his liability for the trust fund recovery penalties on which the assessments were based. A person who has received a Letter 1153 from the IRS has already had an opportunity to contest the penalties and is barred from contesting them before the Appeals Office.

So the issue was whether Lepore had the opportunity to dispute the trust fund recovery penalty assessments, and therefore was whether he had “received” the Letter 1153 that the IRS sent him. The court held that he did not receive the letter.

Lepore’s son, who no longer lived at his father’s address but went there from time to time to mow the lawn, signed the letter. The Appeals Office concluded that receipt of the Letter 1153 by his son constituted receipt by Lepore. The Tax Court believed Lepore for a number of reasons.

First, according to the Tax Court, Lepore credibly testified that he always responded to correspondence from the IRS and that he would have responded to the Letter 1153 had he known about it. Second, Lepore’s son credibly testified that he did not give the Letter 1153 to his father personally and that he instead “threw” the Letter 1153 “somewhere” in the basement. Third, the basement was a multipurpose office space containing Lepore’s desk, a desk for Lepore’s other son (who had moved out of the house a year earlier but still used the basement for office work), and the files of at least three defunct businesses formerly owned or managed by Lepore or by Lepore’s other son.

A letter thrown in the basement therefore could have easily gotten lost, the court said. Fourth, Lepore received a high volume of mail at his house—another reason the letter could have been lost. And fifth, the son who received the letter did not live in the house when he received it. Therefore, there was no casual opportunity for the son to mention that a letter from the IRS had arrived. The court remanded the case to the Appeals Office to consider whether Lepore was liable for the trust fund recovery penalties.

Knowing how things can get lost in my own basement, this seems like a pretty good reason to believe Antonio that he never received the letter. As far as other acceptable reasons, here are a few that came to mind:

• Ex-wife came early to pick up the kids and took it.
• My dumb teenager thought it was a refund for $1,153 and tried to cash it.
• Spilled honey on it and it was eaten by ants.
• Nasty neighbor signed for it and destroyed it out of spite.
• My dog ate it.
• Forwarded it to my accountant—never heard back.

Register or login for access to this item and much more

All Accounting Today content is archived after seven days.

Community members receive:
  • All recent and archived articles
  • Conference offers and updates
  • A full menu of enewsletter options
  • Web seminars, white papers, ebooks

Don't have an account? Register for Free Unlimited Access