Attorney-at-Law

“VOT DID SHE SET?”

In Uncategorized on 06/25/2013 at 17:29

The late essayist and raconteur Harry Golden told the story of an immigrant who, after many years, finally attained US citizenship. Triumphantly forsaking his native tongue, he spoke only broken English thereafter, affecting to understand no other. Even when his wife would address him in their native tongue, he would turn to his US-born children and ask them “Vot did she set?” Thereupon his wife would bombard him with choice language.

Well, Judge Laro doesn’t get the choice language, but he does get the response to a bench opinion, in John Lee Southern & Debra Kay Southern, Docket No. 16222-12L, filed 6/24/13.

John Lee and DK petition from an Appeals denial of their CDP. IRS conceded the Section 6702(a) penalties for jurisdictional purposes only, and that was explained twice to John Lee and DK pre-trial.

Judge Laro: “The fact that respondent conceded the frivolous tax return penalties in the prior deficiency case on jurisdictional ground does not change our conclusion. The assessments and collection of section 6702 penalties are not subject to the deficiency procedures described in sections 6211 through 6216. Sec. 6703(b). Thus, it was improper for respondent to assert the penalties in his notice of deficiency under section 6212, and this Court had no jurisdiction under section 6213 to review their assessments. Moreover, the Court would not have jurisdiction to enforce any settlement agreement the parties might have reached over an issue if the original jurisdiction over that issue was lacking. United States v. Orr Const. Co., 560, 18 F.2d 765, 768-769 (7th Cir. 1977). Thus, as a matter of law, the stipulated decision we entered in the deficiency case could not have settled the issue relating to the section 6702 (a) frivolous return penalties.

“Moreover, petitioners have not provided any evidence disputing respondent’s claim that respondent’s counsel had explained to them in the pretrial conference that to dispute the penalties, petitioners had to pay the penalties first and then file a refund suit in the district court. Respondent had also stated substantially the same in his Letter 555-T provided to petitioners well before petitioners signed the stipulated decision. Thus, in all fairness, petitioners were on notice.” Bench opinion, at pp. 14-15.

So after Judge Laro announces victory for IRS, both John Lee and his counsel echo Harry Golden’s hero.

“MR. SOUTHERN: I really didn’t understand what you were getting at.

“THE COURT: I appreciate it, sir. You’ll have to get a copy of the opinion and then you can read it. A copy of the opinion will be made available to you.

“MR. CHMIELEWSKI: Okay. So, in other words, you’re going with what they said and then I have to appeal that decision.

“THE COURT: The Court has rendered an opinion and you may have a ground of appeal with respect to it. Thank you, sir.” Bench Opinion, at p. 16-17.

Vot did she set?

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