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26.8 Appealing IRS Decisions

Key Takeaways

  • The "90-Day Letter" (Statutory Notice of Deficiency) is the "ticket to Tax Court."

  • Taxpayer has 90 days (150 if outside U.S.) to petition Tax Court.

  • Tax Court is the only court where you can litigate without paying first.

  • Collection Due Process (CDP) hearing allows appeal of liens/levies.

  • CDP request (Form 12153) must be filed within 30 days of notice.

  • Collection Appeal Program (CAP) is faster but has no judicial review.

Last updated: October 2026

Why This Matters for the Exam

The appeals process is heavily tested on Part 3. The exam tests your knowledge of the 90-Day Letter, Tax Court deadlines, and the difference between CDP and CAP for collection matters.

The "90-Day Letter" (Statutory Notice of Deficiency)

If a taxpayer disagrees with the IRS after receiving the 30-Day Letter (or ignores it), the IRS issues a Statutory Notice of Deficiency, commonly called the "90-Day Letter."

Key Facts:

CharacteristicDetail
Deadline90 days (150 if outside U.S.) to petition Tax Court
Why It MattersLast chance to challenge before paying
Also Called"Ticket to Tax Court"
If MissedTax is assessed; collection begins; only option is pay and sue for refund

Critical Point: Treat the 90-day deadline as strict. The Tax Court dismisses a late petition (even one day late) for lack of jurisdiction, although the Third Circuit (Culp v. Commissioner, 2023) has held the deadline non-jurisdictional and subject to equitable tolling.

Tax Court: The Only "Pre-Payment" Forum

The U.S. Tax Court is unique because it allows taxpayers to challenge a deficiency without paying the tax first.

CourtPay First?Notes
U.S. Tax CourtNoFile within 90 days of 90-Day Letter
U.S. District CourtYesPay, file refund claim, wait, then sue
Court of Federal ClaimsYesPay, file refund claim, wait, then sue

30-Day Letter vs. 90-Day Letter

Factor30-Day Letter90-Day Letter
Official NameExamination ReportStatutory Notice of Deficiency
Deadline30 days90 days (150 if abroad)
ActionRequest AppealsPetition Tax Court
Consequence of Inaction90-Day Letter issuedTax assessed; collection starts
Missed deadlineNot fatal (a 90-Day Letter follows)Tax Court dismisses a late petition (the Third Circuit allows equitable tolling)

Collection Due Process (CDP)

CDP provides a formal process to challenge liens and levies before they become final.

When It's Triggered:

  • Final Notice of Intent to Levy: IRS must notify taxpayer before levying.
  • Notice of Federal Tax Lien Filing: IRS must notify taxpayer after filing a lien.

Form 12153: Request for Collection Due Process Hearing.

Deadline: 30 days from the date of the notice.

CDP Hearing Rights:

  • Challenge the appropriateness of the collection action.
  • Propose alternatives (Installment Agreement, Offer in Compromise, CNC status).
  • Challenge the underlying liability if not previously contested.

Judicial Review: If you disagree with the CDP determination, you can petition the Tax Court.

Equivalent Hearing

If you miss the 30-day CDP deadline, you can request an Equivalent Hearing within 1 year of the notice.

CDP HearingEquivalent Hearing
Within 30 daysAfter 30 days, within 1 year
Judicial review (Tax Court)No judicial review
Collection suspendedCollection NOT suspended

Collection Appeal Program (CAP)

CAP is a faster, less formal alternative to CDP. It applies to:

  • Before or after a levy.
  • Termination of an Installment Agreement.
  • Rejection of an Installment Agreement request.
  • Seizures.

Key Difference: CAP decisions are final within the IRS—you cannot go to Tax Court.

CDP vs. CAP Comparison

FactorCDPCAP
FormForm 12153Form 9423 (preferred for written requests; some CAP appeals can start by phone)
Deadline30 daysBefore or after action
Judicial ReviewYes (Tax Court)No
Suspends CollectionYesNormally yes (unless collection is at risk)
FormalityMore formalLess formal, faster

Real-World Scenario

Scenario: Your client receives a Final Notice of Intent to Levy dated June 1, 2026. The client wants to propose an Installment Agreement instead of having their wages levied.

  • Deadline: July 1, 2026 (30 days from June 1).
  • Action: File Form 12153 (CDP Hearing Request) by July 1.
  • Result: Collection is suspended during the CDP hearing. The client can propose an IA.
  • If the IRS denies the IA: The client can petition Tax Court to review the determination.

On the Exam

Question types to practice on appeals:

  1. 90-Day Letter Questions: "How long does a taxpayer have to petition Tax Court?"
  2. Tax Court Questions: "What is unique about the U.S. Tax Court?"
  3. CDP Questions: "What form is used to request a CDP hearing?"
  4. CDP vs. CAP Questions: "Which collection appeal allows judicial review?"

The key is to remember: 90-Day Letter = 90 days to Tax Court. CDP = 30 days, Tax Court review available. CAP = faster, no Tax Court review.

Test Your Knowledge

What is a unique feature of the U.S. Tax Court?

A

It is only for criminal cases

B

You can litigate without paying the tax first

C

It has no judges

D

It handles only state tax issues

Test Your Knowledge

Which collection appeal option allows for judicial review (Tax Court)?

A

CAP (Collection Appeal Program)

B

CDP (Collection Due Process)

C

OPR Hearing

D

Refund Suit

Test Your Knowledge

How many days does a taxpayer have to request a CDP hearing after receiving a Final Notice of Intent to Levy?

A

10 days

B

30 days

C

90 days

D

1 year

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