Attorney-at-Law

I’M UNCONFUSED

In Uncategorized on 03/29/2023 at 19:17

Kenneth S. Ingber & Karol H. Ingber, Docket No. 20904-22L, filed 3/29/23 (last Palindrome Day this year) had me scratching my head. Judge Mark V Holmes was waking the echoes of my blogpost “Without Prejudice?” 7/20/16.

Ken & Karol want to dismiss their petition from a NOD, and IRS says OK.

Judge Holmes dismisses, but states “without prejudice.”

As I said in my above-cited blogpost “If in fact there was jurisdiction based on a timely petition at that time, and if the one-hearing-per-tax-year rules of Section 6330(c)(4)(A) apply, then any new petition…must be time-barred, no?”

Well, yes and no.

Yes, Ken & Karol can’t go back to Tax Court; even with post-Boechler equitable tolling, they only get one hearing per tax year.

But perhaps like Richard T. Wagner and Margie Wagner, 118 T. C. 330, filed 4/15/2002, the lead case on motions for dismissal from lien/levy cases, they don’t want to be in Tax Court. The late Judge Laro dismissed Richard’s and Margie’s petition without prejudice to their right to go to USDC to fight over their NOL carryforward.

As Ken & Karol are represented by counsel, I must conclude there is a strategic retreat here.

So dismissal of a lien/levy petition is without prejudice both to petitioner and IRS. Judge Laro noted in Wagner that FRCP 41(a)(2) allowed dismissal unless there was prejudice (other than the prospect of another proceeding) to the other side (IRS); here, there isn’t. IRS can proceed with collection as soon as the petition is dismissed, unless Ken & Karol post bond or pay up and seek refund in USDC. And no prejudice to petitioner going to try their luck there; no issue or claim preclusion from Tax Court.

Takeaway- After 56 (count ’em, 56, and I have) years of practicing law, I should know by now that you have to read the cases.

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NOTED IN PASSING – 3/29/23

In Uncategorized on 03/29/2023 at 16:39

I’ll use this heading from time to time to note in brief Tax Court opinions and orders that don’t merit a complete entry on their own account

First up, Robert A. Di Giorgio, Sr., T. C. Memo. 2023-44, filed 3/29/23. Rob is a mortgage and real estate wheeler-dealer, whose underreporting gets him deficiencies and chops north of $10 million, but get the second Ms. Di Giorgio, a Philippine national with minimal education, innocent spousery. Nothing novel here.

Next, John Landis Heinaman, Docket No. 11263-21L, filed 3/29/23. John is nailed for TFRPs for Heinaman Contract Glazing, Inc., for which he is a responsible person.

The only interesting thing in this off-the-bencher from Judge Goeke is that, notwithstanding telling John he has already had his chance at Appeals to contest liability and lost, thus taking liability off the menu, Judge Goeke lets him testify about liability on the trial. He admits paying creditors before paying IRS, Transcript, at p. 14.

“So despite the fact that the underlying liability is not before this Court, we note that petitioner’s position regarding the underlying liability is flawed.” Transcript, at p. 14.

And John was less than candid about his available assets when he applied for an OIC.

DRAWN OFFSIDE

In Uncategorized on 03/29/2023 at 16:07

Unfortunately this objection to an offside call doesn’t apply when a would-be insured applies to one of the insurance exchanges established pursuant to the Affordable Care Act of 2010, is told they qualify for PTC, get APTC, and breach the 400% MAGI cutoff.

That statute has received so much criticism (not to say condemnation) from the entire political spectrum that I merely report Chalaundra Edjewel Sneed, T. C. Sum. Op. 11, filed 3/29/23, as another example of the failure of the exchanges scheme. A complicated system is inadequately explained, and operating personnel cannot always correctly advise applicants.

Chalaundra’s year-at-issue MAGI is over the 400% poverty level cutoff, so owes the $7K APTC she received. She didn’t attach her Form 8952 reconciliation to her 1040, but mailed it later.

Judge Elizabeth Crewson Paris: “Petitioner does not appear to dispute respondent’s determination on technical grounds but instead seeks a collection alternative because of financial hardship. In this proceeding to redetermine a deficiency under section 6213(a), the collectibility of the tax liability is not at issue before the Court. The Court notes, however, that the Oklahoma Marketplace informed petitioner that she was eligible for the APTC for 2018 because of an apparent misunderstanding of the application instructions on her part. The Court is not unsympathetic to petitioner’s plight. Nevertheless, the Court is bound by the statute as written and the accompanying regulations when consistent therewith. The simple facts are that petitioner’s MAGI exceeded eligibility levels and that she must repay the APTC payments made on her behalf. Accordingly, the Court sustains respondent’s determination.” T. C. Sum. Op. 11, at p. 5 (Citations omitted).

I must leave discussion of the other deficiencies in the present system to another place. This is, as always, a nonpolitical blog.