Though channeling the Great Communicator, the Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, Mark V. Holmes, shows his wonted disrespect for the partitive genitive (again) in Bryan Rowder, Docket No. 21724-12L, filed 11/5/13, today’s designated hitter, as no orders are issued today.

Rowdy Bryan twice skips a correspondence show-and-tell with Appeals, and doesn’t show for calendar call on IRS’ motion for summary judgment. Bryan’s tactic is to ask for a continuance at the last minute, or as Judge Holmes ungrammatically puts it “Mr. Rowder did not appear at the hearing but sent a letter a couple business days before asking for more time and including none of the information the settlement officer had asked for. He simply reiterated that he wanted to challenge his underlying tax liability. She sent him another letter giving him another couple weeks to send in information; he ignored that as well.” Order, at p. 1.

C’mon Judge, you’re a graduate of both Harvard University and University of Chicago (“where joy goes to die”). Do you ask for “a piece pie and a cup coffee” in the Judges’ cafeteria at 400 Second Street, NW?

Now lest the sins of Rand Paul (Republican Senator from Kentucky, for anyone from Mars reading this) descend upon my balding head, I quote from the about.com article on the partitive genitive: “The Partitive Genitive in Latin is a type of Genitive that is used to show the relationship of part to whole. (Reminder: The Genitive is a case used for nouns, pronouns, and adjectives. It frequently shows possession between two things.) If you have a part of something, the substance that is the whole is in the Genitive Case.” http://ancienthistory.about.com/od/genitives/qt/032909partitivegen.htm

A couple of all the weeks that are, Judge Holmes, is how you’re supposed to write it; and a cup of all the coffee in the cafeteria.

Back to Rowdy Bryan.

The facts so far look like a slam dunk for IRS. Bryan was given a chance to contest his underlying liability for tax, stalled, provided no evidence…should be game over, right?

Yes, says Judge Holmes. But not quite. He admonishes IRS counsel at the calendar call that, in the words of my blogpost 8/20/13, “You Have To Fulfill The Requirements”.

“However, as the Court explained to respondent’s [IRS’] counsel, Code section 6330(c)(1) requires the IRS officer conducting the hearing to ‘obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met.’ One of these requirements is that any notice of deficiency be mailed to the taxpayer’s last known address. Sec. 6212(b). If that didn’t happen here, the consequence would not be that Mr. Rowder gets to contest his underlying liability, it would be an abatement of the assessment of the deficiency.” Order, at p. 2. (Citation omitted).

Bryan had his chance to contest his liability, and blew it, so that’s done. But the SNOD’s the thing. If it wasn’t mailed to Bryan at his last known address, or if he otherwise didn’t get wind of it in time to petition, then there’s no deficiency and no case.

Apparently Appeals never made sure the SNOD and proof of mailing thereof got into the SO’s hands, and the SO said nothing about the SNOD in the NOD.

And Bryan didn’t have to raise this issue before the CDP or at the CDP.

Judge Holmes: “Mr. Rowder asked for a remand; we have to conclude that he’s entitled to one. On remand, he cannot challenge the amount of his underlying tax liability — he’s had his chance to do that. But the settlement officer must make a reasoned determination on the issue of whether the IRS followed its administrative procedures in assessing the deficiency — Did it send a notice of deficiency to Mr. Rowder’s last known address? Did he otherwise receive it with enough time to petition in Tax Court? But — we stress again — if that notice was sent to his last known address and he did not receive it, he has missed his opportunity to contest the ‘existence and amount of his underlying tax liability’.” Order, at p. 2.

So, IRS, give Judge Holmes a supplemental NOD that fulfills the requirements, and then let him have a status report responding to the supplemented NOD.