In Uncategorized on 05/05/2014 at 15:43

Doesn’t help you if you spoke to Appeals but didn’t tell the the whole story. That’s Judge Buch’s riposte to the Miccosukee Tribe of Indians of Florida, Docket No. 20785-13L, filed 5/5/14.

The Tribe claims its four previous lawyers messed up, although three of them showed up at Appeals to contest the employment taxes assessed against the Tribe, and the last one presented documents regarding a class action against yet another lawyer, who apparently advised the Tribe they didn’t owe such taxes.

Howbeit, everyone agrees that though these lawyers showed up, they presented very few documents bearing on the point. So Appeals bounces the Tribe, and tells IRS to go collect.

The Tribe petitions Appeals’ NOD. The Tribe claims they never had a chance to contest the underlying employment tax liability. “Petitioner asserts that the review of the protests did not constitute a prior opportunity to dispute the underlying liability because the Tribe did not materially participate during the two years the protests were in the Office of Appeals and because none of their counsel provided substantive responses to the Appeals Officer’s requests. We do not evaluate how well petitioner availed itself of a prior opportunity for a conference with Appeals; our inquiry is simply whether petitioner had the opportunity for a conference with Appeals.” Order, at pp. 1-2.

So whatever the Tribe’s lawyers did or didn’t do, they had a chance to do right. Once they started talking to the AO, in the immortal words of the late great Herb Brooks: “Tonight is your night. Go out there and take it.” Or if you don’t, you won’t get another chance.

But IRS has other problems, so IRS gets partial summary judgment only to the extent that the Tribe has no further chance to contest its underlying liability.

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