Note: The following is an excerpt from the introduction to the article as published in The Tax Lawyer. Author citations have been omitted for brevity. Tax Section members may read the article in its entirety in Adobe Acrobat format.
Taxpayer Procedures and Remedies in Tax Controversies:
The Elusive Maze of the “Net Worth” Limitations
Robert J. Stuart*
* Fredrikson & Byron, P.A.;
University of Minnesota-Duluth, B.A., 1990;
University of North Dakota, J.D., 1997; New York University, LLM (tax), 1998
There are a number of procedural devices and remedies available to taxpayers involved in federal tax controversies that may either increase the likelihood of success or decrease the cost of the litigation. For example, an eligible taxpayer may be able to shift the burden of proof under section 7491, so that the Service bears the burden of proving certain factual issues. A qualifying taxpayer may also be entitled to recover attorney’s fees and other reasonable administrative or litigation costs under section 7430 if the taxpayer substantially prevails with respect to the amount in controversy or with respect to the most significant issue or set of issues, the Service’s position was not substantially justified, and certain other statutory requirements are met. Alternatively, the taxpayer may decide to make a “qualified offer” under section 7430(g) to pressure the Service into a settlement or recover attorney’s fees and other costs if the Service is unwilling to accept the offer.As detailed below, the net worth limitations set forth in section 7430(c)(4)(A)(ii) often present a substantial obstacle to taxpayers seeking to take advantage of one or more of the above procedural devices and remedies. Despite the significance of these net worth limitations, determining whether a taxpayer in fact satisfies them is not as easy as one would expect. This Article explores the net worth limitations and addresses select issues regarding the application of these limitations to taxpayers involved in federal tax controversies.