Attorney-at-Law

WHOSO WOULD INTERVENE, THOUGH HE WERE DEAD

In Uncategorized on 08/02/2013 at 18:13

If I may misquote a much more significant statement, “whoso would intervene, though he were dead, yet shall his heirs”. That’s Judge Gale’s message in Lesley A. Hudson, Docket No. 13256-12S, filed 8/2/13, but not the designated hitter of the same name and number. I’ll get to that one further along.

Lesley gets hit with two SNODs, claims innocence for both per Section 6015, but notes that the other taxpayer on the returns for those years was the late Mark, her husband, now three years dead. Two years’ worth of deficiencies were at issue, 2008 and 2009, but Lesley is timely as to only the second.

When two persons file a return, each is entitled to have his or her tax liability separately determined as to him or her. But just because a party entitled to have that liability determined isn’t properly before Tax Court, the petition can’t be dismissed unless that absent party is given a reasonable chance to come in.

Obviously the late Mark can’t intervene. But Lesley was pro se, didn’t have a lawyer before, and so she catches a break.

Judge Gale: “We accordingly construe Lesley Hudson as having filed the petition in this case on behalf of herself and Mark Hudson. Because he is deceased, Mark Hudson is not a proper party to these proceedings. The interest of Mark Hudson’s estate in this litigation can be represented by any individual with capacity under Rule 60(c), and the Court is authorized by Rule 63 to order substitution of such individual as a party. Local law is applied to determine who has the capacity to be substituted as a party.” Order, at p. 2.

So, since this is a California case, Judge Gale checks California law, decides Mark’s and Lesley’s kids are apparently heirs at law, and on filing the requisite California affidavit can pursue whatever remedies the late Mark might have had. So they get a thirty-day window to show up, both to contest the deficiency, and also to oppose or support Lesley’s request for Section 6015 relief.

Now for the designated hitter, same petitioner, same docket number. Here Judge Gale got his dates wrong, but he allows Lesley to fight her innocent spouse claim as to the first of the two years at issue, even though her petition isn’t timely as to the deficiency for that year.

Lesley filed her petition May 29, 2012, bearing legible USPS postmark May 22, 2012. IRS first can’t find the 2008 deficiency, but when they do, it was mailed October 26, 2011, so while Lesley is timely for the 2009 deficiency, she’s too late for 2008.

Judge Gale: “However, we will not dismiss the case at it relates to 2008 entirely, because we construe the petition as also seeking our review of petitioner’s request for innocent spouse relief for that year. See sec. 6015(e). All claims in a petition should be broadly construed so as to do substantial justice, and a petition filed by a pro se litigant should be liberally construed. In the petition, petitioner references her filing of a request for innocent spouse relief for 2008 and 2009, and articulates reasons why she believes she should not be jointly and severally liable for the deficiencies asserted for those years. Respondent attached to the answer a copy of the Form 8857, Request for Innocent Spouse Relief, petitioner filed with respect to 2008 and 2009, which was stamped ‘received’ by respondent’s Innocent Spouse Cincinnati Service Center on September 23, 2011.” Order, at p. 2. (Citations omitted).

OK, so Lesley is in as to her innocence, if she’s Section 6015 timely, even if she’s blown the Section 6213 deadline.

But here’s the date problem: “Section 6015(e) provides an individual taxpayer the right to petition the Tax Court to determine the appropriate relief available to the taxpayer under section 6015, if such petition is filed at any time after the earlier of: (1) the date the Secretary mails a notice of determination with respect to a taxpayer’s request for innocent spouse relief (so long as the petition is filed before the close of the 90th day after the date such a determination is mailed); or (2) the date which is 6 months after the date the taxpayer requests innocent spouse relief from the Secretary. Sec. 6015(e)(1)(A). Here, the parties agree that respondent has not issued a notice of determination with respect to petitioner’s request for innocent spouse relief. Six months after September 23, 2011, was March 23, 2012; accordingly, the petition timely invoked our jurisdiction to determine whether innocent spouse relief is available to petitioner for 2008.” Order, at p. 3.

Yes, if the petition had been filed March 22, 2012. But it wasn’t, was it? It was filed May 22, 2012, and that’s eight months, not six months.

I called chambers and left a message. Let’s see what reply, if any, I get. Following.

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  1. I got this one seriously wrong. See my blogpost “Whoso Would Intervene – Part Deux”, 8/5/13.

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