In Uncategorized on 10/24/2014 at 16:23

When a Judge admits that he is not all-wise, all-knowing; moreover, when he does not lustily join in Sir W. S. Gilbert’s immortal words “The Law is the true embodiment. Of everything that’s excellent. It has no kind of fault or flaw, And I, my Lords, embody the Law,” then he truly gets a tip of my battered old Stetson.

And who else should receives this accolade today, but that distinguished jurist, The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Inveterate, Indefatigable Foe of the Partitive Genitive, The Honorable Mark V. Holmes?

[Unhappily, Aaron Copland is not here to favor us with a Fanfare for the Uncommon Man].

Judge Holmes says he learned something both from IRS and from Brenda Bradsher & Kenneth McCormack, Docket No. 17773-13, filed 10/24/14. And a Taishoff  “good job” to counsel for both parties, Thomas F. Virr, Esq., for Bren & Ken, and Brooke S. Laurie, Esq., for IRS.

Judge Holmes explains his bemusement: “The petition that Ms. Bradsher and Mr. McCormack filed included as an attachment an IRS notice that is on a notice-of-deficiency form but plainly stated that it is a disallowance of a refund claim. This puzzled the Court because it had never before seen such a notice, and thinking this might not be a deficiency case at all it issued an order to the parties to show cause why the case shouldn’t be dismissed for lack of jurisdiction.” Order, at p. 1.

But IRS was right. Here’s the chronology. Bren & Ken file return in Year One and pay tax. Bren & Ken file for refund of tax paid in Year Two. IRS denies refund and assesses deficiency in one single notice in Year Three. Bren & Ken timely petition.

IRS can deal with both in one notice, and its manual says so. See IRM

But wait, there’s more. “More importantly, as the parties patiently explained, IRC § 6512 contemplates treating the disallowed claim for a refund as a claim under our overpayment jurisdiction, so there is no problem with our jurisdiction. See IRC § 6512(b)(3)(C)(i). (There is even a somewhat similar case in which we’ve already explained why we have jurisdiction in these circumstance.)” Order, at p. 2. (Citation omitted, but note the case; it may come in handy).

“Having thus learned something new, there is nothing left for this division of the Court but to…” discharge the order to show cause. Order, at p. 2.

That’s what makes this so much fun–there’s always something to learn.


In Uncategorized on 10/23/2014 at 16:43


 Those hardy persons still reading this blog may wonder why I devote so many blogposts to mailing misadventures. Exemplia gratia, as my classically-educated colleagues would say, “Bless ‘Em All”, 10/14/14.

Well, this is where a great number of Tax Court petitions run aground, relegating taxpayers with colorable claims from the free kick of USTC to the pay-to-play route at either USDC or USCFC. And it’s a danger point for the in-the-trenches preparer who must rely upon others to lug the magic envelope to the posties or the people in purple-and-black (or brown and brown, or yellow-and-red). Here be dragons, indeed.

Yet another case in point, this one from yesterday, 10/22/14. I must have fallen asleep as I prepared the blogpost yesterday night, because my literary effusion vanished into cyberspace. So here it is again.

The case is Joseph Sanchez, 2014 T. C. Memo. 223, filed 10/22/14, opinion by the Judge With A Heart, STJ Armen. But STJ Armen, bighearted as ever, cannot help Joe, who misplaced his trust upon an unnamed third party, and lost by one day his sixty-buck ticket to justice.

“Affixed to the envelope was a ‘stamp’ printed by a third party from her computer using software from and a certified mail sticker. The ‘stamp’ reflected the ‘’ logo, ‘$4.70’ of ‘US Postage First-Class’, a five-digit number that presumably corresponds to the ZIP Code from which the ‘stamp’ was generated, and ‘MAR 03 2014’. The ‘stamp’ also includes a string of alphanumeric characters whose meaning is not disclosed in the record.” 2014 T. C. Memo. 223, at pp. 3-4. (Footnote omitted).

Of course, “MAR 3 2014” is the magic last day of the 90, mailing on which would get Joe out of the starting gate at Tax Court and into the race to fight off the $13K of tax and penalty in the SNOD. See again Section 7502.

Except it doesn’t. Joe’s trust in, and worse, in his unnamed third-party helper, avails him not.

Joe’s correspondence doesn’t show up at 400 Second Street, NW for a week. It bears a USPS postmark, clearly legible, as follows: “Salt Lake City UT – TUE 04 MAR 2014 – 841 PM”. Joe is therefore a day late and much more than a dollar short.

Joe used certified mail, and that helps, but the date of mailing must be evidenced by a USPS postmark, and only if same be lacking or illegible may extrinsic evidence be introduced. See Section 301.7502-1(c)(1)(iii)(B)(3), Proced. & Admin. Regs. Where there are dueling postmarks, USPS wins.

Worse, Joe’s factotum sinks Joe’s boat.

“In support of his argument petitioner provided a statement by the third party who prepared the petition for mailing and then delivered it to the post office. In her statement the third party describes how on Monday, March 3, 2014, after being ‘given documents to mail’, she printed postage using software, added extra postage for certified mail, and then took the petition to the U.S. Post Office…for deposit into the mail. The third party candidly states that in order to ‘avoid[] the long lines’ at the post office, she dropped the petition off without having a certified mail receipt stamped by a Postal Service employee and that as a consequence ‘the sender has no documentation showing * * * [the post office] received the certified package’ on March 3, 2014.” 2014 T. C. Memo. 223, at p. 6.

I would point out that, in post offices where there are automated postal machines that dispense postage and receipts maintained by USPS, it might be tempting to rely on the machines. I myself have suggested that; see my blogpost “Going Postal”, 2/4/13. After Joe’s debacle, though, I’m not so sure. After all, the technophobes and Luddites still reign, and the posties may have the magic touch, after all.

And I also point out that maildrops inside post offices aren’t cleared as often as one might wish.

Finally, in my local post office there’s a sign on the maildrop as follows: “Items delivered after 5 p.m. will bear the next day’s postmark.” I wonder if such a sign appeared in Joe’s local post office.

Many years ago, in its pre-USPS incarnation, the post office had a slogan: “Mail early in the day, It’s the better way.”

Just ask Joe.


In Uncategorized on 10/22/2014 at 22:32

Not Hardly

Older readers of this chronicle may remember STJ Lewis (“The Right Spelling”) Carluzzo in his role as tax return preparer. For the newer among the faithful, check out my blogpost “Tax Court As Preparer?”, 9/17/12.

Well, STJ Lew bailed on the tax return preparation gig, but Duane Morley Cox & Jeanne Cox, Docket No. 26501-13S, filed 10/22/14, want Ch J Michael B. (“Iron Mike”) Thornton to copy edit their amended petition.

“…petitioners filed a Motion To Change or Correct Caption. In that motion petitioners seek to have the Court ‘correct’ various typographical error [sic] in the exhibits attached to petitioners’ amended petition….” Order, at p. 1.

After all, Ch J Iron Mike tells them “…we issued an order correcting the spelling of Mr. Cox’s middle name from Marley to Morley.” Order, at p. 1.

So maybe Duane Morley and Jeanne were confused, and thought that only Tax Court Judges could proofread papers.

They should read some Tax Court orders for a couple days, as Judge Holmes would say. That would disabuse them of the notion that anyone proofreads these orders.

Howbeit, Ch J Iron Mike isn’t a proofreader.

“Petitioners are advised that if they wish to correct various typographical errors in exhibits attached to their amended petition, petitioners should do so by filing a motion for leave to file an amendment to amended petition and lodging therewith, an appropriate amendment to amended petition containing such corrected exhibits.” Order, at p. 1.

We don’t do tax prep and we don’t do proofreading.


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