Attorney-at-Law

THE IRREPRESSIBLE

In Uncategorized on 10/22/2019 at 23:27

That’s Peter E. Hendrickson, MF (Master Frivoler), trying it on once again with Judge Buch in Peter E. Hendrickson & Doreen M. Hendrickson, Docket No. 6863-14, filed 10/22/19. Pete wants a Rule 152 vacation of the decision Judge Buch laid on him, nailing him for deficiencies and chops.

Pete claims IRS is precluded from hitting him for deficiencies, because they slugged him in USDCEDMI for an erroneous refund and enjoined him from further frivolity. That was a roaring success. No, Pete, two different claims, no claim preclusion.

Next Pete claims IRS never asserted Section 6651(f) fraudulent nonfiling, except they did in the Letter 886A that accompanied the SNOD.

Pete claims the SFRs that gave rise to the SNOD were a fraud on Tax Court. That gets Pete the good old “somber reasoning and copious citation of precedent” wave-off.

While most pitchers by this point would have handed the manager the baseball, left the mound, showered, put on the glamour vines, and headed downtown to chat up the local talent, Pete is still in there pitchin’.

Pete claims he should’a gotten dependency exemptions for Doreen and the little Hendricksons. Judge Buch saved the best for last.

“The Hendricksons are not entitled to dependency exemptions because they never preserved the issue. The Hendricksons never pled dependency exemptions and may not do so now. New issues that are not based on fraud, mistake, or lack of consent are not sufficient to vacate or revise a decision. Federal Rule of Civil Procedure 60(b) provides that a court may relieve a party of judgment upon the finding of newly discovered evidence. The presence of the Hendricksons’ minor dependent children during the relevant tax years is not newly discovered evidence to the couple. Nor is Mrs. Hendrickson newly discovered to Mr. Hendrickson.” Order, at p. 6. (Footnote omitted).

 

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CROSS MOTIONS?

In Uncategorized on 10/22/2019 at 15:42

Sirius XM Connected Vehicle Services Holdings Inc. and Subsidiaries f.k.a. Agero Holdings Inc. F.K.A. CCAS Holdings, Inc. and Subsidiaries Consolidated Group, Docket No. 17641-18, filed 10/22/19, has worked out a way to resolve most or all of the key issues in its current dust-up with IRS. And Judge Albert G (“Scholar Al”) Lauber is down with this.

Only I, an humble blogger, an outsider looking in, have got a question.

The parties think a motion for summary J would do it, and each party should make one. Only Sirius goes first, and when IRS responds, as Rule 121(b) mandates, IRS can cross-move for summary J.

Now it is well-known that I am a great fan of summary J, so much that I will not cross-reference all my blogposts wherein I waxed lyrical on the subject.

But cross-motion? The Rules never mention cross motions, although it would be a good thing if they did. Rule 121 seems to require separate motions, individually labeled.

But I applaud Judge Scholar Al for cutting through an ambiguity, even though he does so only in an order that cannot be used as precedent.

SUBSTANTIAL UNDERSTATEMENT

In Uncategorized on 10/21/2019 at 15:35

Doesn’t Work for Whistleblowers

Vincent J. Apruzzese, 2019 T. C. Memo. 141, filed 10/21/19, claims that, in the course of suing the adm’rs/ex’rs of a certain estate, he turned up substantial undervaluation of estate assets, which had been sold for invalid installment notes.

IRS was about to “No Change” the 706, which was under audit, when Vince’s Form 211 swam into their ken.

IRS took Vince’s ammo and fired it, to the tune of $424K disgorged by the adm’rs/ex’rs. And IRS stumped up 22% thereof to Vince, admitting that, without Vince connecting the dots and shining the flashlight, the fisc would have folded.

So why is Vince suing? He’s not grousing about how much he got on this award. He’s claiming IRS could have gotten a lot more. So Vince wants Judge Vasquez to order IRS to squeeze the adm’rs/ex’rs harder, so that more goodies would fall to the fisc (and maybe a small piece to Vince).

Nonstarter.

Judge Vasquez: “While we have jurisdiction to review the Commissioner’s award determination, we do not have authority to ‘review the Commissioner’s determinations of the alleged tax liability to which the claim pertains.’  Nor do we have authority ‘to direct the Secretary to proceed with an administrative or judicial action.’ 2019 T. C. Memo. 141, at p. 9 (Citations omitted).

Vince got his award, and had no quarrel with the amount thereof.

It may be that the IRS attorney on the estate audit was a wee bit less than ultimately aggressive, but Judge Vasquez cannot second-guess him.

Of course, since IRS put five (count ‘em, five) attorneys on this barrel-shoot of a case, against Vince, who was pro se, mayhap IRS might want to consider putting a few more horses in harness on the Estate & Gift Stagecoach, and leave such cases as this to one attorney.