In Uncategorized on 04/01/2013 at 21:48

Maybe so, but that doesn’t let you contest your underlying tax liability in a CDP, if you got a SNOD and didn’t timely petition. Even Paul Simon’s 1975 hit avails you not, as we learn in Judge Lewis (the Right Way) Carluzzo’s designated hitter, Sarunas Vincas Abraitis, Docket No. 4985-12L, filed 4/1/13.

SVA petitions from a NOD at Appeals, contesting his underlying liability on the ground that his mental condition precluded him from petitioning when he got the SNOD, and opposing IRS’ summary judgment motion because the administrative record doesn’t include all the documents SVA submitted.

Judge Lew agrees about the record, so no summary judgment for IRS, but SVA can’t challenge the underlying tax liability, whatever his mental state was when he got the SNOD.

Judge Lew: “We agree with respondent [IRS] that petitioner is not entitled to challenge the existence or the amounts of the underlying liabilities in this proceeding. Petitioner’s position on the point is unsupported in fact and in law. Information showing petitioner suffers certain health issues hardly establishes that he suffers from any mental disease or defect, and as noted in U.S. v. Davis, __ F. Supp. 2d __, 2013 WL 796655, at *2 (D. Or. March 4, 2013) neither do the frivolous positions he advanced in correspondence with respondent that preceded this action. Furthermore, even if he did so suffer, petitioner has provided no authority, and we have found none, that suggests that an individual who did not petition this Court in response to a notice of deficiency because of some mental disease or defect could later challenge the income tax liability that results from the assessment of that deficiency in a section 6330(d) proceeding.” Order, p. 2 (Footnote omitted.).

And here’s the omitted footnote: “In any event, petitioner’s claim with respect to his lack of capacity to have petitioned the Court in response to the deficiency notices would appear to be undermined by his unchallenged, and so far presumed capacity to have authorized the commencement of this proceeding. See Rule 60.” Order, p. 2, footnote 2.

The relevant portion of Rule 60 is found in Rule 60(d): “Where a party attempts to represent himself or herself and, in the opinion of the Court there is a serious question as to such party’s competence to do so, the Court, if it deems justice so requires, may continue the case until appropriate steps have been taken to obtain an adjudication of the question by a court having jurisdiction to do so, or may take such other action as it deems proper.”

Apparently SVA wasn’t still crazy after all these years.

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