Attorney-at-Law

OBLIGING GETS RESULTS

In Uncategorized on 01/13/2018 at 17:01

See my blogpost “Obliging, Toujours Obliging,” 1/3/18.

Judge David Gustafson’s deferential suggestion for a phoneathon and a chat concerning Section 6501(c)(10) worked its beneficent results.

Here’s Laidlaw’s Harley Davidson Sales, Inc., Docket No. 14616-14L, filed 1/12/18.

“Respondent’s counsel advised that respondent’s position on the statute of limitations issue has been clarified and will result in partial agreement in this case. The parties expect that they will be able to file a partial stipulation of settled issues, leaving a narrower dispute for the Court to resolve.” Order, at p. 1.

So come back in six weeks with a stip and a plan going forward guys.

Good job, Judge Gustafson.

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‘WE QUARREL IN PRINT, BY THE BOOK”

In Uncategorized on 01/13/2018 at 15:21

The words of a much greater writer than I give me a title to my blogpost about Michael Sean Greenewald, Docket No. 25719-17, filed 1/12/18. I’m a day late, being away from home but with Sir Andrew brought to me by a principal in a Big Four Tax firm.

Michael Sean petitions a batch of SNODs and NODs for taxable years from 2004 to 2017. He states simply “I have never received a notice of deficiency or a notice of determination for the years 2004 thru (sic) 2017.” Order, at p. 1.

IRS responds with a Rule 51 motion for a more definite statement. Much more usual is the motion to dismiss for failure to state a claim on which relief can be granted. So I blog this one.

Ch J L Paige (“Iron Fist”) Marvel finds Michael Sean’s statement definite enough to send IRS off to search its records to see if it sent anything, and to make appropriate motions thereafter.

This is the good-mannered response to IRS’ motion. It is much better than “What part of ‘he never got nothing’ don’t you understand?”

 

THE PROCRASTINATOR’S TOOLBOX

In Uncategorized on 01/11/2018 at 18:21

Only one item in it, to continue my “toolbox” series, Vincent M. Lorusso, 2018 T. C. Memo. 3, filed 1/11/18. That’s Vincent M. Lorusso, Esq., PA criminal lawyer, but he’s here over a CDP in which he did not participate.

Nevertheless, LoRusso timely petitioned the NOD. IRS riposted with a Section 6673(a)(1) delay of the game proposed chop.

If this seems a wee bit extreme (usually the Judge warns the petitioner who plays the clown), note the following.

Lorusso moves to dismiss.

Judge Vasquez: “Since 2015 petitioner has initiated four distinct cases with similar factual backgrounds. Two of these cases were decided in favor of respondent on his motions for summary judgment. The other two cases include the instant case and another pending case not presently before us; in both of these cases, respondent filed motions for summary judgment and petitioner filed motions to dismiss.” 2018 T. C. Memo. 3, at p. 4.

Sounds like a good move. Wagner is there to make dismissal of a petition from a NOD a no-hurt option. IRS will levy anyway, Just don’t play this card more than twice.

“Petitioner’s history of litigation with the Court may merit the imposition of a penalty under section 6673. However, respondent has not moved for such penalties against petitioner in the past, nor has the Court issued petitioner a warning regarding these penalties. Therefore, we decline to impose a section 6673 penalty against him at this time.” 2018 T. C. Memo. 3, at p. 4.

OK, Lorusso squeaks away, with the usual admonition to straighten up and fly right..

But is his petition dismissed? Why do I ask? Wagner is a sure-fire out, no?

Not quite.

When it comes to dismissals generally, the question is whether the nonmovant will be prejudiced. In a classic Wagner, no, IRS lost time, nothing more. But Tax Court has imported, via Rule 1(b), FRCP 41(a)(2), and asks.

Here, IRS would be prejudiced if its Section 6673 chop was still in play, but it isn’t. So Lorusso, you’re dismissed; go and sin no more.

Warning to others trying to play this gambit: YMMV: in your case IRS may be prejudiced.