Attorney-at-Law

A DO-OVER

In Uncategorized on 01/11/2013 at 16:37

This one takes me back to my days on the stoop of a Bronx apartment building, long ago, in a galaxy far away. We played Baby Base or our version of handball (it would take too long to explain) with the pink rubber ball bearing the jet-black script lettering “Spalding” (pronounce it “Spaldeen”, accept no substitutes, or forever be labeled a foreigner; and yes, it is named for the famous Albert Goodwill Spalding, 1850-1915, pitcher and sporting goods magnate). If a ball went astray, or someone committed a solecism not requiring a graver sanction, the play was scrubbed and a “do-over” declared, occasionally followed by a vociferous colloquy. I’m getting nostalgic; oh, for a fifteen-cent Creamsicle from the Good Humor truck so long since gone!

Anyway, back to serious business. Comes now Special Trial Judge Robert N. Armen, Jr., the “Judge With a Heart” (see my blogpost “Ignorance Is Bliss?”, 11/10/11), and gives a do-over to IRS and Pete Disimone, Docket 23850-12, filed 1/11/13, the same day he got the case from Ch. J. Thornton. Now that’s what I call service!

IRS hit Pete with a $2700 deficiency for TY2009, but didn’t send the SNOD until April 16, 2012. Okay so far, but Pete never responds, and when he gets an “amount due” notice in August, he fires off a Tax Court Petition to redetermine in September, claiming IRS sent the SNOD to the wrong address, and IRS had his new address because he filed his TY2011 return timely in 2012, and that’s where IRS sent the “amount due” notice.

No, says IRS, it’s true you filed, but on April 16 we couldn’t know your new address if you filed April 15; but IRS doesn’t attach a copy of the return or any evidence when they received it to their papers seeking to dismiss for want of jurisdiction (late filing of petition).

STJ Armen: “… respondent [IRS] filed a Response to petitioner’s Objection. In his Response, respondent generally does not dispute petitioner’s factual contentions and specifically ’does not dispute that the filing by petitioner of his 2011 tax return * * * constituted ‘clear and concise notification’ of his new address.” Respondent contends, however, that petitioner filed his 2011 return on April 15, 2012, and that respondent was unable, in one day’s time, to update his records to reflect petitioner’s new address. However, the record does not include a copy of petitioner’s 2011 return nor any transcript showing its date of receipt by respondent. Further, under the circumstances herein, we are unwilling to uncritically regard a statement in petitioner’s Objection as an admission upon which respondent can rely to seek the dismissal of this case.

“Noteworthy is the fact that the year for which respondent determined a deficiency is the calendar year 2009. The three-year period of limitations on assessment has yet to expire. Thus, respondent has several months’ time within which to mail petitioner a statutory notice addressed to him at his current (and last known) address. If respondent were to do so, and if petitioner were then to file a petition with this Court within the statutory 90-day period, this Court would have jurisdiction to redetermine the deficiency.” Order, p. 2. (emphasis by the Court).

So STJ Armen denies IRS’ motion to dismiss, but enters his own order, dismissing the case because the SNOD was sent to the wrong address.

Now the parties have a do-over.

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