Attorney-at-Law

DISMISSED! PART DEUX: VARIETIES OF AMBIGUITY

In Uncategorized on 08/09/2013 at 17:21

No, not William Empson’s 1930 classic of literary criticism; literary excellence is rarely found in the Internal Revenue Code or the regulations thereunder. Today we consider two varieties of dismissal, one from a SNOD redetermination and the other from a CDP.

First up, Jazmine M. Valte, Docket No. 8662-13S, filed 8/9/13, Ch J Thornton on deck. Jaz sends the Ch J a billet doux, stating “she wishes ‘to drop the case’ and requesting the Court to ‘discontinue everything.’” Order, at p. 1. Ch J Thornton, a stickler for proper form: “The Court will retitle petitioner’s Letter as a Motion To Dismiss.” Order, at p. 1.

Now our old friend Settles comes into the picture. See my blogpost “Dismissed!”, 5/8/12. Now Settles involved a CDP, not a SNOD, so the holding in Settles will apply to the CDP case I’ll discuss next.

But Ch J Thornton likes Judge Wells’ dicta in Settles enough to quote it: “In the deficiency context, once a taxpayer has filed a petition with the Tax Court, the taxpayer cannot withdraw that petition. See Estate of Ming v. Commissioner, 62 T.C. 519 (1974). When the Tax Court dismisses a deficiency case for a reason other than lack of jurisdiction, we generally are required by section 7459(d) to enter a decision for the Commissioner for the amount of tax determined against the taxpayer in the notice of deficiency. Id. at 522. Rule 123(d) requires that a decision entered pursuant to a dismissal on a ground other than lack of jurisdiction operate as an adjudication on the merits of the taxpayer’s case. [Fn. ref. omitted.]” Order, at p. 1.

So rather than treat Jaz’s note as consent to entry of decision, Ch J Thornton titles it as her motion to dismiss, and denies it. Now Jaz and IRS can do the entry of decision dance.

Next up, Geoffrey Weglarz, Docket No.11416-12SL, filed 8/9/13. Geoff petitioned from a NOD and IRS moved for summary judgment. Geoff moved for a continuance (that’s an adjournment), and IRS said “Okay”.

CSTJ Panuthos: “Petitioner did not file a separate objection to respondent’s [IRS’] motion for summary judgment, but it appears to the Court that petitioner’s motion for continuance contains his objections to respondent’s motion for summary judgment. The Court has not yet ruled on respondent’s motion for summary judgment.” Order, at p. 1.

Then Geoff files a motion to dismiss, stating he is unable to pay his taxes. Confused? So is CSTJ Panuthos.

“Granting petitioner’s motion to dismiss would have the effect of treating petitioner’s case as if it had never been filed. See Wagner v. Commissioner, 118 T.C. 330 (2002). Additionally, the statutory period under section 6330(d)(1) has expired in which petitioner may file (or refile) a Tax Court petition based on the Notice of Determination…. Consequently, should we grant petitioner’s motion, respondent will be able to take all appropriate collection action as provided by law.

“It is not clear to the Court that petitioner is aware of the consequences of filing a motion to dismiss, or that petitioner even intended the document he filed… to dismiss the case and allow respondent to take all appropriate collection action as provided by law. If petitioner indicates to the Court that he intended to proceed to trial rather than dismiss the case, the Court will rule on respondent’s motion for summary judgment. If the Court denies respondent’s motion for summary judgment, this case will be set for trial at a future trial session of the Court….” Order, at p. 2.

So CSTJ Panuthos tells Geoff to let him know soon whether he really intended to have his case dismissed as if it had never been filed, and let IRS levy, and if he says he doesn’t so intend, then it’s summary judgment time. But if Geoff says nothing or says he really wants the case dismissed, then IRS must tell CSTJ Panuthos if they object.

Clear? Thought not.

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