Attorney-at-Law

WAIT ‘TIL I FINISH MY LAWSUIT

In Uncategorized on 03/26/2013 at 19:24

This is not a proposition that gets you very far in a CDP, as two designated hitters demonstrate today, 3/26/13, while Tax Court is on break from opinions.

The cases are Shari L. Hart, Docket No. 019120-12 L, filed 3/26/13, and Charles Lavel Stringer, Docket No. 016282-12 L, same date. The Judge With A Heart, Special Trial Judge Armen, drew Shari, and Judge Thornton has Charles Lavel.

For STJ Armen, see my blogpost “Ignorance is Bliss?”, 11/10/11.

Shari was working at Miller & Midyett Realtors, Inc., a Kansas real estate firm. For convenience, she claims, she signed commission checks to salespeople. Larry Midyett and two other people were the honchos of the place, and Larry even gave Shari a written statement that she wasn’t a responsible person. From that, you can see that this is a TFRP case, and though the real estate peddlers weren’t common-law employees, Section 3121 makes them so for FICA-FUTA purposes.

Shari never raises this when she gets the Letter 1153, telling her IRS is going to nail her for the unpaid trust funds. Instead, she sues Larry and gets a default judgment (what does that tell you about Larry’s solvency?). So she asks for a CDP, at which time she asks the SO to wait until she collects from Larry. But it’s a year since she got the judgment, and so far Shari hasn’t gotten the proverbial centavo uno out of ol’ Larry.

STJ Armen: “Petitioner has never sought a collection alternative in the form of an installment payment agreement or an offer-in-compromise. Rather, petitioner has sought forbearance by respondent in order to permit petitioner to execute on her default judgment against Mr. Midyett and presumably remit any proceeds to respondent.

“The fact that petitioner secured her judgment in May 2012 but has yet to successfully execute on it might suggest that petitioner’s ‘collection alternative’ is not particularly realistic. But, regardless, the fact remains that under applicable law petitioner remains secondarily liable for the trust fund portion of the corporate taxpayer’s employment taxes and that respondent, as creditor, is entitled to seek payment from petitioner and not wait for petitioner to secure possible payment from Mr. Midyett. After all, among the responsible officers, petitioner may be the one with the deepest pockets.” Order, p. 8.

Judge with a heart? Sure. STJ Armen offers the following consolation: “Finally, the Court notes that petitioner is not without a judicial remedy in the form of a refund action. However, such an action would lie in the appropriate United States District Court (see 28 U.S.C. sec. 1346(a)(1)) or in the United States Court of Federal Claims (see 28 U.S.C. secs. 1346(a)(1), 1491(a)(1)), but not in the Tax Court. See United States v. Clintwood Elkhorn Min. Co., 553 U.S. 1,4,11 (2008); see also Greene-Thapedi v. Commissioner, 126 T.C. 1 (2006); McCormick v. Commissioner, 55 T.C. 138, 142 (1970). In Bland v. Commissioner, T.C. Memo. 2012-84, at n.13, the Court, citing Flora v. United States, 362 U.S. 145, 170 n.37 (1960), and Davis v. United States, 961 F.2d 867, 870 n.2 (9th Cir., 1992) described how ‘it would be relatively easy for a similarly situated taxpayer [such as petitioner] to effectively obtain a prepayment judicial review of a sec. 6672 penalty assessment in a refund suit’.” Order, p. 9.

So Shari, have another lawsuit. Or pay up. And IRS, have summary judgment against Shari. And go collect.

Charles Lavel’s tale is similar, but it involves income taxes for a year he filed but didn’t pay. He’s fighting the Texas Attorney General over child support monies. A true Texan, like some relatives of mine, Charles Lavel “…attached to the form a typed letter that stated, among other things, that ‘I believe I don’t owe the money to y’all because I filed tax returns for those years.’ Order, p. 1.

Apparently Charles Lavel was due a refund for subsequent year, but IRS sent the money to the Texas AG to pay support for Charles Lavel’s offspring, so Charles Lavel sued the Texas AG.

Charles Lavel has another argument, but it is relegated to a footnote: “In his petition petitioner asserts vaguely that his 2007 tax liability should have been reduced on account of tax deductions and credits he had in his 2008, 2009, and 2010 tax years. But contrary to Rule 331(b)(4) and (5), the petition does not contain a clear assignment of error in this regard and does not adequately state the facts on which petitioner bases any such assignment of error. In particular, even if we were to assume for the sake of argument that petitioner was entitled to claim deductions and credits for years after 2007 (an issue not properly before us in this proceeding), petitioner has not articulated, and we are not aware of, any legal basis for asserting that such alleged tax benefits for later years would affect his tax liability for 2007.” Order, p. 4, footnote 3.

Charles Lavel claims his lawsuit against the Texas AG raises a question of fact, but Judge Thornton isn’t buying. Since Charles Lavel never submitted a Form 656 or a Form 433-A, “…the existence or outcome of the alleged pending lawsuit is not germane to the determination to sustain the proposed levy.” Order, p. 5.

I do have to give Charles Lavel a Taishoff “good try”, though, for he seeks a writ of habeas corpus ad testificandum to get the SO to testify at Tax Court. IRS claims this is an improper way to get a witness to testify in Tax Court, but Judge Thornton ducks by giving IRS summary judgment.

Takeaway– Sue whom you like, but pay your taxes.

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