That ever-obliging jurist, Judge David Gustafson, who has been running wild through the bench opinions lately, designating them all and even providing the transcripts of his off-the-benchers, is the blogger’s friend. Never a dull moment, even on Fridays, when the opinions dry up and the judges head for the exits.

Today’s gem is Kelly & Christopher Roe, Docket No. 19423-12, Filed 12/20/13. Although Chris is a wildlife biologist with a college education, it’s Kelly who catches Judge David Gustafson’s fancy. She has a J.D. degree, in addition to her wildlife learning equal to Chris’; moreover, “(S)he is an intelligent, competent, and articulate person.” Order, at p. 5.

Take it easy, Judge; she’s also an accomplished tax dodger. When nailed back in 2005 for filing an all-zeros set of 1040s, Kelly confessed that at least some of her positions were frivolous, after Tax Court proposed a $5K hammer each for her and Chris. Protesting her loyalty and devotion to the Sixteenth Amendment and Article 26 of the United States Code was sufficient to cause Tax Court to drop the penalty.

But not a whit dismayed, ol’ Kelly didn’t bother filing returns for the next five years; apparently she thought filling in all those zeros was fatiguing.

IRS, finding little to detain the tourist, goes for a slew of SFRs. “Each SFR consisted of a Form 13496 (‘IRC Section 6020 (b) Certification’) as a front page, to which were attached Forms 4543-A (‘Income Tax Discrepancy Adjustments’) and Forms 886-A (‘Explanation of Items’) . The SFRs did not include any Form 1040 nor any transcript of account showing the entry of data used to establish the taxpayer’s IRS account. Each front page states that the composite document is a valid return under section 6020(b) and lists the contents of the SFR as being (1) the agent’ s report (including Form 4549), (2) Form 886 and (3) the cover sheet (Form 13496) . It does not list, as a fourth item, a Form 1040 or a transcript.” Order, at pp. 7-8.

What’s wrong with this picture?

Well, when IRS tries for fraudulent non-filing penalties,  IRS can’t get those just because someone didn’t file; there has to be concealment or deception. But Kelly and Chris kept good records, even though IRS needed a subpoena to get them; they didn’t deal in cash, or advance spurious claims that the money wasn’t theirs.

In fact, “(T)he closest thing to concealment that appears in our record is the Roes’ non-cooperation with the IRS; but that non-cooperation is as easily explained by cussedness as by any attempt to defraud.” Order, at p. 12. Especially when the cussed one is “intelligent, competent and articulate”, right Judge?

So IRS fails to come up with the “clear and convincing evidence” required for fraud.

Kelly and Chris owe the taxes, plus the non-withholding and the non-filing additions.

But not the nonpayment of tax shown on return (Section 6651(a)(2)). Kelly beats that one in her usual intelligent, competent and articulate way.

“As Ms. Roe correctly argued, however, the SFR’s in this case are deficient. A ‘section 6020(b)(2) substitute for return is fatally defective if it is missing a copy of the Form 1040 the IRS used to establish his account on its computer system or a transcript of account reflecting the entry of data used to establish the account,’ Buckardt v. Commissioner, T.C. Memo, 2010-145,. slip op. at 13, and these SFRs had neither. During closing argument it seemed that Ms. Rose [sic] insisted that in all cases an SFR must include a Form 1040, and the Court resisted this contention (which is an imprecise statement of the law). However, upon study and reflection we now conclude that, under the authorities Ms. Roe cited, the SFRs are deficient; no returns valid under section 6020(b) were prepared; and the Roes cannot be held liable for the section 6651(a) (2) addition to tax.” Order, at pp. 14-15.

But should the Roes get hit with a Section 6673 frivolity penalty? Well, on the one hand they owe us all half-a-million bucks between them, and that’s a substantial hit; and they played nice on the trial. On the other hand, they’ve been down this road before, they’re not stupid, they cooperated sometimes and not others, their former professions of loyalty and devotion ring false (either they didn’t mean them then or they backslid substantially), and while Chris may claim the Lady MacBeth defense, they’re both in this together.

So it’s $20K apiece. “…high within the permissible range, but not the very top. We urge the Roes to abandon frivolous arguments once and for all, lest in a future suit they be held liable for even more.” Order, at p. 19.

No bargains in Judge Gustafson’s court.

No, not an opponent of the title character in the 1962 classic taken from Richard Condon’s novel, with great performances by Ol’ Blue Eyes and Angela Lansbury.

IRS, anticipating the arrival of its recently-confirmed chief, John (“Kosy”) Kosinen, an attorney even older than I but substantially richer, has gone on the Korean warparth.

And thanks to Mr. Patrick Temple-West who is spreading the word about Kosy’s confirmation by our esteemed United States Senate.

Back to business. Y’all will recollect that when we made the free trade deal with the Land of the Morning Quiet (at least it’s quiet south of the Yalu), there was a $500 belt in Section 501 of the statute incorporating the same, for preparers of returns claiming EITC, where the Form 8867 left out a question. See my blogpost “The $500 Misunderstanding”, 10/25/11.

Here’s the latest skinny, direct from Kosy’s new command: “IRS sent warning Letter 4989 to preparers who did not comply for tax year 2011, and, starting this month, IRS will be sending nearly 800 of those preparers notices of proposed penalties for continued failure to attach the form for tax year 2012 returns. Get details on EITC Due Diligence at www.EITC.irs.gov.”

So all you preparers for the poorest of our citizens, be prepared to pay for Kosy’s inauguration if you don’t fill in and send in those 8867s, all 23 (or is it 24?) questions.

Long-time readers of this blog will remember my oft-repeated praise for that obliging jurist, Judge David Gustafson; see, for example, my blogpost “Obliging and Energetic”, 7/5/13, which I ended as follows: “That’s Judge Gustafson – obliging and energetic”.

Well, Judge Gustafson has an off-the-bench designated hitter that shows again how obliging he is, even correcting the SFR of a frivolity merchant to give him a break, in Norval Edmond Hilderbrand, Jr., Docket No. 18248-12, filed 12/19/13.

Norval had been jousting with IRS for some years, but never got into litigation until he got the Internet tax protester bug and didn’t bother filing, notwithstanding the 1099-Rs from his pension plans and the 1099-SSA that the Social Security folks dropped on him. IRS, almost as obliging as Judge Gustafson, saved him the trouble of preparing a 1040 by doing one for him.

And IRS even threw in a SNOD at no extra charge. This caused Norval to petition.

Judge Gustafson gives Norval a lesson in Tax 101 at no extra charge. Thou shalt file a return if thou hast received money or money’s worth, from whatever source derived, in exchange for labor or services, and pay tax thereon.

Norval made so bold as to challenge this, but Judge Gustafson rejects Norval’s frivolity out of hand: “Mr. Hilderbrand’s arguments to the contrary–i.e., that the income tax is voluntary, that as a citizen of the Republic of Florida he is not subject to the income tax, etc.–are frivolous. We will not spend further time and effort refuting these frivolous arguments, for the reasons we explained in Wnuck v. Commissioner, 136 T.C. 498, 501-513 (2011).” Order, at p. 6.

Remember F. Scott Wnuck, a legend in  his own mind? No? Then see my blogpost “One’ll Get You Five”, 5/31/11, my account of Judge Gustafson deconstructing tax protester Scott’s blather and nailing Scott with a $5K Section 6673 frivolity penalty.

Well, Judge Gustafson spares Norval a similar fate, largely because IRS didn’t ask for the frivolity bump. “Mr. Hilderbrand’s position is certainly frivolous. But the Commissioner has not requested such a penalty in this case, and we will not impose one. However, Mr. Hilderbrand is hereby warned that future frivolous arguments may result in the imposition of such a penalty.” Order, at p. 8.

But Judge Gustafson is always eager to oblige, so he helps IRS give Norval an unexpected benefit. “However, Mr. Hilderbrand is entitled to one correction of the IRS’s determination. Section 63(b) (1) allows a ‘standard deduction’ for each taxpayer who does not claim itemized deductions. In its notice of deficiency, the IRS allowed such a deduction for Mr. Hilderbrand. However, section 63(f) (1) provides that ‘[t]he taxpayer shall be entitled to an additional amount of $600…for himself if he has attained age 65 before the close of his taxable year.’ Mr. Hilderbrand turned age 65… well before tax year [at issue], but the IRS did not allow him this additional amount. At trial the Commissioner volunteered that this error should be corrected in Mr. Hilderbrand’s favor. To enable that correction, we will enter decision under Rule 155.” Order, at pp. 6-7.

Of course, Norval has to deal with nonfiling and nonpayment additions to tax.

The Kingdom of the Netherlands and the United States of America have entered into a FATCA IGA, and at first blush it looks like the latest Model 1A Reciprocal. So dodgers, whether you are high in the Swiss Alps or below sea level in a Dutch polder, beware. All is (or soon will be) discovered.

You can actually be exempt from e-filing, if you’re old and intechnicate (a new word I just invented, a portmanteau combining illiterate and technological).

You can read all about it in Darren Peck & Monica Peck, Docket No. 28710-13, filed 12/18/13. Naturally, the order has nothing to do with Darren & Monica.

The order concerns their trusted attorney, William J. (“Old Bill”) Wise, Esq. Old Bill is a name partner in a respected Chicago firm, and a long-ago graduate of the University of Michigan Law School.

Here’s Old Bill’s story, as told by Ch J Thornton: “Among other things in his motion, Mr. Wise states that: (1) since 1959, he has actively practiced before the Tax Court and (2) he lacks the technical knowledge to comply with the Court’s eFiling requirement, and requiring him to comply with that requirement would impose a hardship upon him.” Order, at p. 1.

Ch J Thornton gives Old Bill a bye: “…he is granted an exception from the mandatory electronic filing requirement applicable to papers filed in this case.” Order, at p. 2.

Hint: if you were admitted after JFK took the oath of office, you’re most likely out of luck. So brush up on those e-filing rules on the Tax Court website.

That’s Judge Paris’ advice to Naren Chaganti, a/k/a Narendra Chaganti, in 2013 T. C. Memo. 285, filed 12/17/13.

Naren is a lawyer, apparently a solo, and therefore a cash basis taxpayer. He has a problem with reporting business expenses when paid, as he would rather offset them against client reimbursement, which sometimes happened years later.

Judge Paris: “The law is clear that, for a cash basis taxpayer, the deduction generally must be taken in the year the expense is actually paid by the taxpayer. See Reynolds v. Commissioner, T.C. Memo. 2000-20. Petitioner has failed to point out any exception in the Code that would exclude him from the general rule.” 2013 T. C. memo. 285, at p. 8.

Of course, “It should be noted that this determination reflects the Court’s findings with respect to the timing of the deductions only and not the veracity of the expenses themselves.” 2013 T. C. Memo. 285, at p. 8, footnote 6.

Naren a/k/a Narendra has other problems. He got fined $262 for counseling a client to skip a deposition because some “unforeseen circumstances” made him feel it was to his client’s best interests not to show; however,  Naren a/k/a Narendra has no evidence to support this assertion. Nevertheless, he wanted a Section 162 ordinary-and-necessary deduction, which IRS wasn’t giving him.

But because the record is incomplete, Naren a/k/as Narendra gets a bye: “…it is unknown at this time under which statute petitioner was ordered to pay the $262 sanction to opposing counsel. It is similarly unknown what criteria were required to impose this sanction and whether such an imposition in and of itself would indicate that the expense was not ordinary or necessary to the practice of law. Taken in a light most favorable to each nonmoving party in these cross-motions for summary judgment, a genuine dispute of material fact exists. Accordingly, neither petitioner nor respondent [IRS] is entitled to summary judgment at this time with regard to the deductibility of the $262 sanction.” 2013 T. C. Memo. 285, at p. 11.

However, the $262 isn’t the last of Naren a/k/a Narendra’s  problems. He also got hit with a $2300 penalty ($100 per day for nonpayment) payable to the US District Court because he didn’t pay the $262 when ordered. That deduction is a dead duck.

“Section 162(f), however, disallows a deduction for fines or penalties paid to a government or a governmental agency for the violation of any law. Disallowance under section 162(f) is not limited to criminal fines and penalties. It is clear that the $2,300 fine imposed on petitioner for failure to pay that sanction was for the violation of his duties as an officer of the court in being held in contempt and failing to timely pay the $262 sanction. This amount was paid to the Clerk of the Court for the District Court, a governmental agency responsible for collecting such fines and penalties. Accordingly, petitioner is not entitled to deduct the $2,300 sanction as an ordinary and necessary business expense….” 2013 T.C. memo. 285, at pp. 9-10. (Citation omitted).

Naren a/k/a Narendra’s bad day isn’t over yet. He got slapped with a $18,125 payment to opposing counsel because Naren a/k/a Narendra willfully and unreasonably protracted the litigation, in violation of 28 USC § 1927.

And, unlike the $262 fine, “(T)he District Court then engaged in a lengthy itemized analysis to separate the amount of opposing counsel attorney’s fees that could be directly attributed to petitioner’s improper conduct from those which would be reasonably typical to the practice of law.” 2013 T. C. Memo. 285, at p. 12.

Just in case Naren a/k/a Narendra (and anybody else) didn’t get the message, Judge Paris spells it out again. “The Court finds that the mere fact that petitioner was ordered to pay opposing counsel attorney’s fees under 28 U.S.C. sec. 1927, demonstrates that those amounts were not ordinary and necessary to the practice of law. The District Court’s further analysis in removing the amounts attributable to typical legal expenses confirms that the remaining $18,125 that petitioner was ordered to pay was not common to the practice of law, nor was it appropriate or helpful to his business. Accordingly, petitioner is not entitled to deduct the $18,125 fine levied against him under 28 U.S.C. sec. 1927, as an ordinary and necessary business expense….” 2013 T. C. Memo. 285, at pp. 12-13.

No tax break if you don’t play nice.

That’s the story of Larry E. Austin and Belinda Austin, lead-off hitters in 141 T. C. 18, filed 12/16/13, but the executors and administrators (and spouse) of Arthur E. Kechijian, late of North Carolina, are along for the ride in Judge Lauber’s sleigh.

Larry and the late Arthur were bad-debt stripminers, although apparently better than Mid-Coast Financial of infamous memory. Anyway, Larry and the late Arthur 351’d their respective portfolios of toxic paper into a Sub S, entitling them to much stock (which was stowed in an ESOP that qualified under Section 401(a)), provided they served their four years before the mast at the Sub S.

If they were discharged “for cause”, in this case failing to perform their duties faithfully and diligently after 15 days’ notice to get on the stick during year three, they would be deemed to have sold their shares for 50% of book, rather than the 100% they’d get if they stuck to it.

Larry and the late Arthur claim substantial risk of forfeiture under Section 83. Nope, says IRS, read the regulations:  Section 1.83-3(c)(2) says possible termination because of committing a crime or “for cause” is not a substantial risk.

This is a motion for partial summary judgment because IRS has other arguments, but they involve disputed facts, so no summary judgment for them.

Judge Lauber goes back to when IRS wrote those regulations. IRS admitted it was all facts and circumstances (Sir Ed Elgar, where are you?), but the clear words are “for cause”, and that’s what Larry and the late Arthur said in their stock deal papers.

Now the classic “earnout” (stay to play or you get no pay) is defined in Section 1.83-3(c)(4), Example (1) of the regulations. And both Hank Black of dictionary fame and the Restatement of the Law, Employment agree that the parties can write their employment agreements with a wide-sweeping definition of reasons (causes) for discharge.

Judge Lauber finds the original 1971 version of the regulation didn’t mention discharge for cause, and the phrase was added to the final version as a result of two cases (cited in the opinion), both of which arose out of busted 401(a)s and both of which gave dishonesty as grounds for discharge.

IRS characterized the addition of the “discharged for cause” language to “commission of a crime” as a “less significant” change, notwithstanding the New York State Bar Association’s comment that “the Regulations should not attempt to create presumptions or draw lines, except in the clearest situations (such as forfeiture conditioned only on committing a crime), because to do so is to make a rule of law where none was authorized by Congress.” 2013 T. C. 18, at p. 17.

And calm down, NYSBA membership department; I love ya. I’ll pay my dues before year-end.

Judge Lauber: “The text and evolution of section 1.83-3(c)(2) indicate that the term ‘discharged for cause,’ as used therein, does not necessarily have the same scope that parties to a particular contract may have given this term in their negotiations. Rather, as used in the regulation, ‘discharged for cause’ refers to termination for serious misconduct that is roughly comparable–in its severity and in the unlikelihood of its occurrence–to criminal misconduct.” 141 T. C. 18, at p. 20.

Then, too, the phrase “for cause” may be narrower in regulation than in contract. The phrase in the regulation is known by the company it keeps, namely, crime. As the high-priced lawyers say, “noscitur a sociis”–a Latin phrase meaning “it is known by its associates”. For more about this canon of construction than you want to know, see 141 T. C. 18, at pp. 22-23, footnote 6.

And under State law, contracts are interpreted to effectuate the intent of the parties. The intent was that Larry and the late Arthur labor heart and soul for the greater good of their corporation, and if not, no goodies.

Judge Lauber: “Notwithstanding section 7(B)’s [of their stock deal] appearance in a contractual provision addressing termination ‘for cause,’ the employee activity specified in section 7(B) falls outside the scope of discharge ‘for cause or for committing a crime’ within the meaning of section 1.83-3(c)(2), Income Tax Regs. That is so because an employee’s inability or disinclination to work for the agreed-upon term of his employment contract is not a ‘remote’ event that is unlikely to occur. Even more clearly, that is so because a conclusion that section 1.83-3(c)(2) precludes an earnout restriction from creating a ‘substantial risk of forfeiture’ would make that subparagraph of the regulation inconsistent with the statute.” 141 T. C. 18, at pp. 27-28 (Citations omitted).

The celebrated FATCA website rollout, though not providing as much blogfodder as its more august sibling the ACA health insurance website, is still worth a word or two.

The latest iteration anent the solution to every FFI’s problem is to be found in IRS Announcement 2014-1, hot off the e-press.

As you FFIs (pronounced “fifi”s), QIs, WPs and WTs were told back on July 12 (see IRS Notice 2013-43), whatever y’all loaded on the site has been saved, but none of it is final.

“Notice 2013-43 notified FIs that any information they entered in the registration system before the formal opening of the IRS FATCA registration website at the beginning of January 2014, even if submitted as final, would not be regarded as a final submission. Consistent with the Notice, all registrations prior to January 2014, including registrations submitted as final before December 31, 2013 (GMT -5), will be treated as initiated but unsubmitted. Thus, on or after January 1, 2014 (GMT -5), every registering FI must revisit its account, make edits to its information if necessary, sign its FFI agreement if registering as a participating FFI, and submit its registration information as final.” Notice 2014-1. at p. 1.

And the GIIN requirements have been pushed back. See my blogpost “A Jigger of GIIN”, 4/9/13, and page 2 of the Notice.

Best holiday wishes to all you FIFIs, QIs, WTs and WPs. And to you, IRS. Keep that blogfodder coming.

I didn’t blog Ann Marie Adams, 2013 T. C. Sum. Op.  57, filed 7/18/13, because it really didn’t say anything I thought worthy of my readers’ precious moments. It was a joust about tuition and fees for the Section 25A lifetime learning credit, and the statement Ann  Marie proffered didn’t prove what she paid or when she paid it.

So CSTJ Panuthos sent the parties off for a Rule 155 beancount. Now any number of Tax Court cases, large and small, end up with a Rule 155. The parties do the numbers, and the only thing left for Tax Court to do is enter decision based on the right set of numbers.

Ann Marie and IRS went off to do numbers, and of course couldn’t agree.  Well, prescient CSTJ Panuthos warned her back in July not to try to relitigate the case she lost: “The Court will enter a decision in this case pursuant to Rule 155 because of the concessions by the parties as enumerated herein. This will provide an opportunity for the parties to compute the correct tax on the basis of the mutual concessions and the opinion herein. Petitioner is advised that Rule 155(c) provides:

“(c) Limit on Argument: Any argument under this Rule will be confined strictly to consideration of the correct computation of the amount to be included in the decision resulting from the findings and conclusions made by the Court, and no argument will be heard upon or consideration given to the issues or matters disposed of by the Court’s findings and conclusions or to any new issues. This Rule is not to be regarded as affording an opportunity for retrial or reconsideration.” 2013 T. C. Sum Op. 57, at pp. 6-7.

Wouldn’t ya know, it, Ann Marie tries again.

CSTJ Panuthos won’t have it. Here’s his take, in Ann Marie Adams, Docket No. 13767-12S, filed 12/13/13: “… petitioner was provided an opportunity to file an objection to respondent’s Motion for Entry of Decision. On December 3, 2013, petitioner’s objection was filed. Petitioner attached documents to her objection attempting to show that the Court’s findings and conclusions were not correct. In the Court’s Summary Opinion filed in this matter the Court clearly set forth the provisions of Tax Court Rule 155(c) and pointed out that ‘… no argument will be heard upon or consideration given to the issues or matters disposed of by the Court’s findings and conclusions or to any new issues.” Petitioner’s assertions in her objection are precisely contrary to the Court’s rule which limit the Court’s consideration at this juncture. Harris v. Commissioner, 99 T.C. 121, 124 (1992), aff’d, 16 F.3d 75 (5th Cir. 1994); Estate of Smith v. Commissioner, 110 T.C. 12 (1998).” Order, at p. 1.

Decision entered based on IRS’ numbers.

Takeaway- It’s a beancount, nothing else.

No, not the television quiz show. But let’s take “dissipation of assets” and “removal of property” for $200K, Alex, and watch Judge Nega spin the wheel for Christopher A. Bibby, the enterprising lead player in the eponymous 2013 T. C. Memo. 281, filed 12/12/13.

Chris shows his buccaneering spirit by claiming $213K in withholding (to which he is admittedly not entitled) and getting a $203K refund, which he proceeds to disburse thusly: “Petitioner admits spending the refunds for the following items: (1) $32,133.88 for a used car; (2) $25,270 for offerings and tithes to his church; (3) $21,077 for wedding and honeymoon expenses; (4) $61,815 on home repairs; (5) $9,482.50 for tax return preparation and filing; (6) $1,955.66 on furniture purchases; and (7) $36,365 for various items such as food, clothing, and bill payment. Petitioner admits transferring his interest in his personal residence to a property holding company wholly owned by petitioner and his wife. Petitioner also made a $25,000 loan to Diamond & Associates, in repayment of which Diamond & Associates quitclaimed three properties to petitioner, which petitioner subsequently transferred to EMG, LLC, a separate business entity wholly owned by petitioner and his wife.” 2013 T. C. Memo. 281, at pp. 2-3.

Ya gotta like a guy who steals from us all to give to his church. By your leave, Chris, I’ll decide to which religion, if any, I give my money. And to whom I’ll give wedding presents.

Anyway, Chris diddles with IRS about collection alternatives, while failing to disclose wage and pension information, and not conveying back the real estate to himself alone.

IRS loses patience and hits Chris with a jeopardy levy, which Chris petitions.

Judge Nega elaborates on Section 6851 and the regulations thereunder: “The existence of one or more of the following conditions supports a determination that collection of the tax is in jeopardy: (1) the taxpayer is or appears to be designing quickly to depart from the United States or to conceal himself or herself; (2) the taxpayer is or appears to be designing quickly to place his, her or its property beyond the reach of the Government by removing it from the United States, by concealing it, by dissipating it, or by transferring it to other persons; (3) the taxpayer’s financial solvency is or appears to be imperiled. Sec. 1.6851-1(a), Income Tax Regs.; sec. 301.6861-1(a), Proced. &Admin. Regs.” 2013 T. C. Memo. 281, at p. 7.

Chris is a prime candidate for jeopardy: “Petitioner incorrectly claimed and received large tax refunds and then proceeded to freely spend from those refunds. Petitioner also transferred certain real property received in satisfaction of a loan to Diamond & Associates to EMG, LLC, and then jointly to himself and his wife. We find that these facts justify the determination to sustain the jeopardy levy because petitioner was quickly dissipating the funds or otherwise attempting to put them beyond the reach of respondent [IRS] by transferring funds to third parties. It should also be noted that petitioner has not disputed his tax liabilities. Petitioner did not fully cooperate with the settlement officer’s reasonable information requests about sources of unreported income and the transfer of certain real property other than to petitioner’s direct ownership.” 2013 T. C. Memo. 281, at p. 9.

Now readers of my blog (that stalwart company) may remember my abbreviated discussion of jeopardy levies in connection with Lee Ang’s trial, which I did not attend. See my blogpost “The Answer”, 12/10/13.

But this opinion from Judge Nega is the whole story; in the immortal words of Dan Rowan and Dick Martin from long ago, “you can bet your Bibby.”