Tax Court will not join together (except in the Fifth and Eleventh Circuits), at least once the taxpayer gets a SNOD and petitions it.

Here’s a case that shows, as if more proof were necessary, that (a) we need a single Court of Tax Appeals, rather than the current anarchy of a dozen circuits, and (b) registration and competence testing for preparers is past due and overdue.

Specifically, here’s Isaak Abdi Ibrahim, 2014 T. C. Memo. 8, filed 1/13/14. Isaak is a Somalian refugee living in Minnesota, which must be a shock to begin with, and, as he neither reads or writes English, is somewhat isolated.

Nevertheless, he has taxable income, and goes to a local preparer who speaks Somali. Notwithstanding that Isaak is married to Rukia Hassan for the entire year at issue, the Somali preparer has Isaak filing HOH and Rukia (who also can’t speak, read or write English) filing MFS. Isaak claims two of his four stephildren as dependents, and now wants dependency and child tax credit for the other two, notwithstanding that Rukia claimed one of them for EIC purposes on her MFS return.

Somehow Isaak found a Somali-speaking USTCP when he got the SNOD, which he petitions timely.

Well, even though IRS concedes the two stepchildren Isaak claimed, neither he nor his Somali-speaking USTCP put in evidence sufficient to show the other two stepchildren as qualifying children or qualifying relatives, so that’s out, even if Rukia hadn’t claimed one of them her own self for EIC.

Now Isaak wants to file an amended return to claim MFJ status. The problem with amending after a SNOD and a timely petition is Section 6013(b)(2)(B), which prohibits that particular audible at the line of scrimmage.

But Isaak’s USTCP has a case from Fifth Circuit, which she claims lets him do it. The case is Glaze v. United States, 641 F.2d 339 (5th Cir. 1981).

Judge Nega takes up the story. “…the Court of Appeals for the Fifth Circuit held that ‘separate return’ as used in section 6013(b) refers only to married filing separately status and not to any other filing status, including, as here, head of household. Through Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), the Court of Appeals for the Eleventh Circuit adopted all prior decisions by the Court of Appeals for the Fifth Circuit as binding precedent on all Federal courts within the Eleventh Circuit. As a result of Bonner, Glaze is binding precedent within both the Fifth and Eleventh Circuits.” 2014 T. C. Memo. 8, at pp. 5-6.

How d’ya like them apples?

Not much, says Judge Nega, and neither do other Tax Court judges or IRS Chief Counsel.

First, appeal here lies with Eighth Circuit, and that Court hasn’t ruled on the point. But Tax Court sure has, and none of those rulings follow Glaze outside Fifth or Eleventh Circuits.

“Petitioner’s argument ignores such contrary precedent. This Court has consistently held that section 6013(b)(2) applies to married taxpayers who file returns with an incorrect status, such as head of household or single filer. See, e.g., Currie v. Commissioner, T.C. Memo. 1986-71; Blumenthal v. Commissioner, T.C. Memo. 1983-737; Saniewski v. Commissioner, T.C. Memo. 1979-337; see also Phillips v. Commissioner, 86 T.C. 433, 439 (1986) (‘[W]e believe that that reading of section 6013(b) [in Glaze] is too narrow[.]”), aff’d in part, rev’d in part on another issue, 851 F.2d 1492 (D.C. Cir. 1988).

“Additionally, both the Office of Chief Counsel and the Internal Revenue Service have announced they will not follow Glaze. See Rev. Rul. 83-183, 1983-2 C.B. 220; Action on Decision 1981-140 (June 2, 1981). In declining to follow Glaze, the Office of Chief Counsel and the Internal Revenue Service noted that the legislative history of section 6013(b) does not indicate that ‘separate return’ is limited to married filing separately, as Glaze pronounced. This rationale is supported by the fact that Congress enacted the predecessor statute to section 6013(b) in 1951 but did not establish a separate rate structure for married taxpayers filing separately until 1969. See Tax Reform Act of 1969, Pub. L. No. 91-172, sec. 803(a), 83 Stat. at 676.” 2014 T. C. Memo. 8, at pp. 6-7.

Amend first, petition afterwards. Unless you’re in the Fifth or Eleventh Circuits.

Of course, a single Court of Tax Appeals, having national jurisdiction over a national tax, would eliminate these mental gyrations. And requiring preparers to be registered and tested, at least to the extent of assuring some minimal capability, is so long overdue and so notorious that the present Wild West system is an insult to honest taxpayers and honest practitioners.