Attorney-at-Law

PENALTY SHOT

In Uncategorized on 04/25/2014 at 16:10

A rare occurrence in ice hockey, when a player is deprived of a clear scoring opportunity, principally on a breakaway, where the player has eluded all opposing players and has a clear path to the opposing goal, but is thwarted by a foul committed by the opposing team (e.g., grabbing from behind or slashing with a stick).

Here, although IRS may be clear of opposition from Vernice B. Kuglin, Docket No. 14065-13L, filed 4/25/14, STJ Lewis (That Man Can Spell) Carluzzo won’t award IRS the penalty in this designated hitter.

IRS seeks dismissal for failure to state a claim, and throws in a request for the Section 6673 frivolity chop. To support its penalty seeking, IRS says Vernice has a track record of commencing cases and then conceding on the eve of trial, causing much waste of resources.

STJ Lew told Vernice either to amend her petition or oppose IRS’ motion. Of course she did neither.

STJ Lew: “We consider petitioner’s failure to reply to the above-referenced Order to reflect her concession that respondent’s motion is well-made as it relates to petitioner’s challenge to the determination made in the notice. Moreover, we view the allegations contained in the petition to be meritless challenges to respondent’s statutorily authorized procedures. Those allegations do not give rise to any justiciable issues.” Order, at p. 1.

Time for the Section 6673 chop?

No, STJ Lew is scrupulous. “Given the burden imposed upon respondent pursuant to section 7491(c), however, we do not consider petitioner’s failure to respond to the above-referenced Order to be a concession that she is liable for a section 6673(a) penalty. Furthermore, although positions advanced in the petition might suggest the imposition of a section 6673(a) penalty, we do not, under the circumstances, consider it appropriate to impose that penalty as part of this summary disposition.” Order, at p. 2.

Remember, Section 7491(c) provides: “Notwithstanding any other provision of this title, the Secretary shall have the burden of production in any court proceeding with respect to the liability of any individual for any penalty, addition to tax, or additional amount imposed by this title.”

All IRS has produced is that Vernice has a history of fooling around, and submitted a defective petition now. Not quite enough.

So Vernice’s petition is tossed, and IRS can go levy.

But STJ Lew doesn’t say Vernice is absolutely in the clear on the Section 6673 chop.

“Upon appropriate motion by respondent, the Court will vacate this Order of Dismissal and Decision in order to allow respondent to pursue his claim for the imposition of a section 6673(a) penalty.” Order, at p. 2.

Vernice, get those pads on and get into the goal crease.

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