In Uncategorized on 01/22/2013 at 23:22

It is at least 45 years since I heard Sergeant Longry’s nasal, gravelly snarl resound through Tent City at Fort Jackson, South Carolina: “Sick call! Get out here, you sick, lame and lazy!” Only a near-death condition would suffice for ol’ Sarge.

But IRS Appeals should heed ol’ Sarge’s words. See my blogpost “Sick Sick Sick”, 9/26/12, the sad tale of A. DeeWayne Jones and his remand to Appeals from Judge Marvel.

Now Judge Wherry deals with the issue, this time featuring LaMar D. Pomeroy, briefed and argued with Dixie L. Pomeroy in 2013 T. C. Memo. 26, filed 1/22/13.

LaMar isn’t very sympathetic. He’s a habitual non-filer and frivolity merchant who has run up a substantial tax, additions and frivolity penalty liability. Judge Wherry: “Petitioners, LaMar and Dixie Pomeroy, are husband and wife, and both are retired. They have a long history of noncompliance with Federal income tax responsibilities, with unpaid income tax liabilities for the years 1997 through 2009. In addition, Mr. Pomeroy has unpaid liabilities for civil penalties for frivolous submissions assessed under section 6702(a) for the tax years 1999, 2000, 2003, and 2005. Mrs. Pomeroy has unpaid liabilities for civil penalties for frivolous submissions assessed for tax years 1994, 1999, 2000, 2003, and 2005.  For tax years 1997 through 2003 and 2006, petitioners did not file income tax returns, and respondent [IRS] prepared substitutes for returns under section 6020(b).” 2013 T. C. Memo. 26, at p. 3.

But he is a sick fellow, and Appeals didn’t give Dixie a fair chance to get a doctor’s note attesting to LaMar’s deteriorated physical state. Dixie did get a doctor’s letter, but produced it after the administrative record had closed, and Ninth Circuit learning bars introduction of such evidence after the administrative record has closed.

LaMar tried offers-in-compromise, but COIC determined he and Dixie could pay in full before the SOL on assessments ran out, and that’s fine, even though LaMar argued that 48 months was the limit, and COIC had to consider his physical ailments.

“The crux of petitioners’ argument appears to be that Mr. Pomeroy’s medical condition qualified them for offers-in-compromise based on effective tax administration even though they submitted the offers under doubt as to collectibility grounds. Indeed, IRM pt. (Sept. 23, 2008) states that, for offers submitted as doubt as to collectibility offers, the settlement officer should also consider the offer as an effective tax administration offer if special circumstances exist even if the collection potential exceeds the liability. Petitioners point to numerous instances in the record to show that Appeals was well aware of Mr. Pomeroy’s stroke and should have considered the offers as effective tax administration offers once it determined that petitioners could fully pay the liabilities.” 2013 T. C. Memo. 26, at p. 17.

“Petitioners alerted respondent numerous times that Mr. Pomeroy was gravely ill. The administrative record reflects that Appeals was not only aware that Mr. Pomeroy had suffered a stroke, which could very well have a drastic effect on petitioners’ medical expenses, but it was also aware that Mrs. Pomeroy was in the process of trying to get a letter from a physician. SO gave petitioners only 10 business days, between the November 29, 2010, date of the letter and the December 13, 2010, deadline, to obtain a prognosis or diagnosis from a doctor.” 2013 T. C. Memo. 26, at pp. 18-19 (Name and footnotes omitted).

But one omitted footnote is worth quoting: “As Mrs. Pomeroy testified at trial: “’[W]hen you have a family member that is almost on their death bed, it gets kind of hard to do everything[.]’” 2013 T. C. Memo. 26, at p. 18, footnote 8.

Judge Wherry decides he can’t evaluate the record based upon what appears therein. So he sends the case back to Appeals, where presumably Dixie can put in the rejected doctor’s letter, and whatever other pictures, descriptions and accounts she can muster to document LaMar’s lamentable condition.

Even a hardened sinner like LaMar can get due process in Tax Court, if he’s on sick call.

  1. I believe Sergeant Longry would have put them in the stockade. 🙂


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