Tax Court gives second chances today, a no-opinion day. If you don’t want to play, however, you’re out. See my blogpost “We’ll Come to You–Yet Again”, 1/3/13, for an example of a second chance.

Here’s an example of a second chance not taken. See Judge Gale’s latest, Gordon F. McCaleb, Deceased, Docket No. 656-12S, filed 3/1/13.

You’ll remember that the late Gordo was fighting over a $4K deficiency plus an accuracy penalty when the clock ran out on him personally, but not on his case. Judge Gale sent an offer to join the dance to the late Gordo’s heirs-at-law, complete with copies of the relevant State law.

In the meantime, IRS concedes the penalty, but the heirs-at-law jointly and severally pass on the invitation, and Judge Gale determines the petition didn’t raise any substantive issues anyway, so he dismisses for want of prosecution.

Today’s a big day for second chances in Tax Court, though,  so The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, Mark V. Holmes, does a designated hitter in Alison T. O’Neil, Petitioner, and Michael J. O’Neil, Intervenor, Docket No. 28711-09. This is a Rule 161 motion, which “are good tools for ‘correcting substantial errors of fact or law and allow[ing] the introduction of newly discovered evidence that the moving party could not have introduced, by the exercise of due diligence, in the prior proceeding.’ Estate of Quick v. Commissioner, 110 T.C. 440, 441 (1998).” Order, p. 1.

Of course, Judge Holmes finds Alison has nothing new, but must cruise through his de novo findings on Alison’s innocent spouse claim, because Alison lived in California when this case started.

Judge Holmes: “And, because of the Ninth Circuit’s recent decision in Wilson v. Commissioner, ___F.3d___, 2013 WL 174395 (9th Cir. Jan. 15, 2013), aff’g T.C. Memo. 2010-134, it is the ‘de novo’ portions of our opinion–and not the portions where we reviewed the Commissioner’s exercise of his discretion–that we discuss.)” Order, p. 1.

For those who tuned in late, Ninth Circuit decided in Wilson that Tax Court had jurisdiction to consider matters outside the administrative record in reviewing an innocent spouse denial, following Eleventh Circuit. Judge Bybee dissented, saying the Administrative Procedures Act prevents this; Tax Court is limited to reviewing what IRS did with the evidence it had for abuse of discretion.

So Judge Holmes looks at Alison’s story, finds nothing new, and “( S)ome of the remaining discussion in Ms. O’Neil’s motion (her health as a factor that the Commissioner improperly considered in issuing the notice of determination, and her suggestion of remand to the IRS) are no longer tenable after Wilson. See Wilson, ____ F.3d______ at_______,  2013 WL 174395, at *8, *11.” Order, p. 3.

No second chance for Alison, either.