Attorneys-at-Law

GIVE IT UP, IRS

In Uncategorized on 08/01/2014 at 16:29

No, not applause, and certainly not for apprentice rounder Janice Marie Cross, whose recent doings featured in my blogpost “Forthright, Credible, and Largely Undisputed”, 7/24/14, although, according to that Obliging Jurist Judge David Gustafson, Janice Marie is none of the above.

Still, even an apprentice rounder and frivolity merchant is entitled to due process. So IRS must get its ‘Disclosure Office [to] certify the SFRs via a Form 2866, “Certificate of Official Record….”. See Janice Marie Cross, Docket No. 1439-13, filed 8/1/14, at p. 1.

When Janice Marie first asked that the SFRs be certified (of course she didn’t file returns), IRS said they could do it, but why bother? They’d given her uncertified ones already, and whatever they gave Janice Marie now, she’d just dispute them anyway.

Judge Gustafson hews to the law. “Unless the parties stipulate the authenticity of the SFRs, it would seem that respondent must at trial authenticate the SFRs by means of a certificate of official record. Since the offering of such certificates seems highly likely (if not inevitable), we see no reason not to require respondent to produce them now.” Order, at p. 2.

So give it up, IRS. And Janice Marie, be careful what you ask for–you might just get it.

TWO OLD ROUNDERS

In Uncategorized on 07/31/2014 at 17:12

I mean persons who are seeking frequent litigator points in Tax Court. They gravitate to 400 Second Street, NW, in Our Nation’s Capital, as moths to a cliché. We have two of them back today, one a multiple previous participant in my blogposts, and one swum fresh into my ken.

Randy Thompson is back again. You remember Randy, who inspired The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being and implacable foe of the partitive genitive, Judge Mark V. Holmes, to a memorable dissent, as to which see my blogpost “The Great Dissenter”, 12/28/11. And Randy even got Eighth Circuit to praise Judge Holmes, as more fully set forth in my blogpost “The Great Dissenter Vindicated”, 11/12/13.

But Randy stipulates and capitulates, so the point that Judge Holmes raised is moot. See Randall J. Thompson and Karen G. Thompson, 2014 T. C. Memo. 154, filed 7/31/14.

Judge Wherry gets in the last word, but Randy really handed it to him. “The Court of Appeals found that we have jurisdiction to determine Mr. Thompson’s outside basis in his partnership interest. We need not make such a determination, however, because the parties have stipulated the deficiency. See Thompson v. Commissioner, 137 T.C. at 223-224. Our task on remand is, therefore, limited to entry of a decision formalizing that agreement.” 2014 T. C. Memo. 154, at p. 8. (Footnote omitted).

Finally, in United States v. Woods, 571 U.S. ___, 134 S. Ct. 557 (2013), the Supremes said that Tax Court could apply the overvaluation chop at a partner-level proceeding, but how that impacts each partner necessitates a partner-level proceeding. Unless, as here, the partnership is a sham, so a fortiori (as my high-priced colleagues say), the partners’ outside basis is zero, and the chop is purely computational.

So if Randy is still unhappy, let him pay and sue for a refund.

The new rounder is Alvin Sheldon Kanofsky, 2014 T. C. Memo. 153, filed 7/31/14. Al has been around. He lost in Tax Court, lost again in Third Circuit, filed for cert with the Supremes (denied), and moved for rehearing (ditto). Al never filed a bond on appeal, so IRS proceeded with collection.

Al, of course, asked for a CDP and raises the same arguments that got blown away before. Appeals says no, so does Tax Court, Alvin hits the Third Circuit trail again, loses, moves for rehearing en banc, knocks on the Supremes’ door and gets denied.

Al is a physics professor at Lehigh University. He didn’t follow the dictum misattributed to his famous colleague from Princeton, Dr. Einstein: “Insanity is doing the same thing and expecting a different result.”

Judge Dawson: “Petitioner is no stranger to this Court. He was warned in prior proceedings that his conduct could subject him to a penalty if he continued to repeat the arguments he made in earlier cases before this Court and the Court of Appeals for the Third Circuit in his deficiency and levy cases for the tax years 1996, 1997, 1998 and 2000. He has also litigated in this Court in docket No. 3774-11 his case involving income tax deficiency for 2006 and 2007. In each case, petitioner has continued to raise arguments of fraud, corruption, and whistleblowing activities nearly identical to those raised in this lien case.” 2014 T. C. Memo. 153, at pp. 16-17. (Footnote omitted).

Now that sounds like a Section 6673 chop is on the way.

Especially since, when trying the docket No. 3774-11 case, Al got what Rudy Kipling would have called a “wigging”:

“Now, to the extent that you start off on side trips that I don’t think are relevant, I’m going to warn you. But if it turns out that you persist in making arguments — now, you know the government has been yelping about the fact that you’re taking positions they view as frivolous and groundless. And to some degree, if those positions are the same positions you asserted in your previous two visits to the Tax Court [Kanofsky I and II], I may well agree with them.

“If I do, you’ve run the risk that you might be penalized because there is a penalty under the Internal Revenue Code that I can impose in my discretion if I conclude that various arguments and positions are being asserted that are frivolous, groundless, have been rejected over and over again. So you just need to be forewarned.” 2104 T. C. Memo. 153, at p. 17.

Of course Al appealed. Third Circuit gave Al the usual. So Al is back for the fourth (count ‘em, fourth) time in Tax Court. And that’s enough.

“Petitioner is a well-educated individual who admits that he understood cautions and warnings given by this Court, yet he continues to reiterate the same irrelevant and groundless arguments.” 2014 T. C. Memo. 153, at p. 19.

Ten grand, Al.

But check today’s orders, namely and to wit, Alvin Sheldon Kanofsky, Docket No. 21821-13 L, filed 7/31/14. Judge Lauber, that man of many talents, can use them in dealing with Al yet again.

Will Al get twenty? Stay tuned.

AN AMBUSH

In Uncategorized on 07/30/2014 at 17:38

A classic case of deer-in-the-headlights gives me my blogpost for today. The one T. C. Memo. for 7/30/14, is a reiteration of the old story–for an OIC you must file a Form 656 and follow the Regs to the letter. There’s not a lot of new learning here, so I’m not blogging it.

And the one order I am blogging is really a warning to those who will not read it–the self-represented. Ch J Michael B. (“Iron Mike”) Thornton may have thought he was doing Deborah Loftsgard, Docket No. 15923-14, filed 7/30/14, a favor by saving her $60. Of course Debs is pro se.

I submit that he was assisting her (most likely unwittingly) to deprive herself of prepayment judicial review.

The facts are so simple. And for once I’m including the dates, because they really matter.

“On July 8, 2014, the Court received from petitioner a letter which referenced a notice of determination dated June 6, 2014, issued to petitioner with respect to the 2001 taxable year. To protect petitioner’s statutory time period within which to begin a case, the Court filed that letter as a petition to commence this case at docket No. 15923-14. On July 15, 2014, the Court issued an Order directing payment of the filing fee for this matter on or before August 29, 2014. On July 28, 2014, the Court received from petitioner a letter indicating that petitioner did not intend through her initial correspondence with this Court to commence a case herein. Rather, petitioner is seeking information regarding the basis for the determination made by Internal Revenue Service (IRS).” Order, at p. 1.

Debs, if you want to find out the basis for what IRS did, send IRS a Branerton letter. If you don’t know what that is, read my blog or Google Branerton v. Com’r..

But do it after you pay the $60 bucks and move to vacate this Order. If ordered to amend your petition, just state you disagree with whatever IRS did, need informal discovery and have sent a Branerton letter. Tax Court loves Branerton letters.

Even if IRS wants to fight, talk to their attorney and suggest you can settle if you can talk.

But what happens here sinks Debs.

Ch J Iron Mike: “Petitioner is advised that the IRS and the Commissioner are separate from this Court and that petitioner would need to contact the IRS directly for such inquiries as to IRS activities and determinations. Accordingly, it appearing that petitioner does not intend to pay the filing fee as directed in the Court’s Order dated July 15, 2014, it is

“ORDERED that, on the Court’s own motion, this case is dismissed for lack of jurisdiction.” Order, at p. 1.

Debs, if this was a NOD and not a SNOD, you just lost any chance of Tax Court review, whatever IRS tells you or doesn’t tell you. And whatever IRS tells you or doesn’t tell you, if you want to fight you have to pay in full and sue in District Court or Federal Claims. And best of luck with that.

If what you got was a SNOD, you might have time to petition again, but whether SNOD or NOD, it’s simpler to ask for a Rule 162 motion to vacate.

Just mail in a $60 check with your letter, and say you were unaware you were giving up your right to Tax Court review, and you want your petition to stand. But do it now. You only have 30 days.

With so many self-representeds, winning is easy for IRS.

Edited to Add: Of course, the foregoing should not be construed, and may not be used, as (a) legal advice, or (b) to abate in whole or in part any interest or penalties for, related to, or in connection with any tax or imposition by any governmental authority having or asserting jurisdiction, or (c) solicitation of retention or employment, or for the furnishing of legal or non-legal services, or (d) to create a client-attorney relationship or privilege.

All recipients hereof are advised that a qualified common interest privilege is asserted, both as to the substance of this communication or any claims in connection herewith or in consequence hereof.

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