Attorney-at-Law

DISABLED BUT REHABILITATED

In Uncategorized on 07/16/2013 at 23:07

Today’s story is from the courtroom of the obliging Judge David Gustafson, who has a designated hitter for us in the case of Gregory Scott Savoy, Docket No. 12316-12L, filed 7/16/13.

No one disputes “(1) that Mr. Savoy, who has suffered from a long-term illness, may not have been given an adequate opportunity to challenge his 2007 liability, (2) that Mr. Savoy may not have been given adequate time, in view of his illness, to submit tax returns for 2003 to 2010 (the submission of which was a prerequisite to his eligibility for certain collection alternatives), and (3) that there may also be a defect of ‘verification’ under section 6330(c)(1), involving the notice of deficiency underlying the 2007 liability.” Order, at pp. 1-2.

So IRS asks Judge Gustafson to send Greg back to Appeals, so he can get a fair shake all around on the numerous defects from his prior visit to Appeals. And Judge Gustafson did.

Is Greg happy? No. He wants Judge Gustafson to certify, per Section 7482(a)(2)(A), whether the Americans With Disabilities Act (the ADA) applies to IRS, so he can take an interlocutory appeal.

You’ll remember that taxpayers’ batting averages with interlocutory appeals are hardly what will qualify one for the All-Star Game. See my blogpost “Too Late And Not Timely”, 4/25/13. And Greg fares no better than Carol Diane Gray did back in April.

For an interlocutory appeal (an appeal from an order that does not finally determine the case or controversy; that’s an order where neither side has won or lost–yet), you need two things: first, a controlling question of law is involved where there is a substantial ground for a difference of opinion, and second, that the appeal may materially advance the termination of the litigation.

Well, by its terms the ADA doesn’t apply to the Federal government, leaving aside Jimmy Madison’s famous comment from The Federalist No. 57: “I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America—a spirit which nourishes freedom, and in return is nourished by it.”

But this is a non-political blog, right?

However, the Rehabilitation Act of 1973, which does apply to the Federal government, has the standards of the ADA engrafted thereon. “In sum, the ADA does not apply to Federal agencies; but the Rehabilitation Act of 1973, employing the ADA’s definition of ‘disability’, does apply to the Federal agencies. If this is Mr. Savoy’s position, then he is correct. If he disputes this proposition, there is no substantial ground for difference of opinion.” Order, at p. 4.

So Greg, what’s the difference of opinion? ADA standards apply.

IRS will put Greg in CNC (currently not collectible status) and review his case. “It is therefore not clear whether there will actually be any dispute that would implicating [sic] the provisions of the Rehabilitation Act (or, if it were applicable, the ADA). We therefore cannot say that an immediate appeal of any legal question about the applicability of the ADA would ‘materially advance the ultimate termination of this litigation’, for purposes of section 7482(a)(2)(A). “ Order, at pp. 4-5.

So Greg loses, and goes back to Appeals.

And doesn’t anybody proofread these orders?

 

 

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