Attorney-at-Law

“FORTHRIGHT, CREDIBLE AND LARGELY UNDISPUTED”

In Uncategorized on 07/24/2014 at 16:03

Meets “Irrelevancies and Frivolous Contentions”

First up, batting for forthrightness, credibility and largely undisputedness is Patrick A. Davis, 2014 T. C. Memo. 147, filed 7/24/14.

Pat is a single Dad. He claims EITC and dependency for daughter Ashley, aged 19, full-time nursing student. Ashley lives with Dad and grandma (Dad’s mama) 20 miles from campus, works only for minimum wage part-time, and gets more than half her support from Dad, grandma, Ashley’s mama (from whom Pat was divorced years ago, but who was named custodial parent in the divorce decree), and the other grandma.

The famous Section 152 custodial-noncustodial dispute, with Form 8332 attached, is off the table, because no one disputes Ashley lived with Dad and grandma for more than half the year in question, and that fact, by virtue of Section 152(e)(4)(A), makes Pat the custodial parent.

So Ch J Michael B. (“Iron Mike”) Thornton blows off IRS’ counsel, whose sole argument seems to be the divorce decree from years ago.

IRS already conceded the penalty, and didn’t raise the issue whether Ashley, aged 19 (and therefore over age 18 during the year in question), might be emancipated by State law and therefore not anyone’s qualifying child. So, obviously convinced by Pat’s “forthright, credible and largely undisputed testimony” (2014 T. C. Memo.147, at p. 3), Ch J Iron Mike gives Pat the whole deal.

Can’t say IRS counsel covered himself with glory in this one, but we’ve all had such days.

Second batter, and looking at a lot tougher pitching, is Janice Marie Cross. There are two docket numbers, and thus two orders, for these designated hitters from that Obliging Judge, David Gustafson, but I’ll reference Docket No. 1439-13, filed 7/24/14. The texts of both orders are identical.

The cases were consolidated, but that doesn’t deter Janice Marie, who sent Judge Gustafson a billet doux entitled “Petition and Memorandum of Law”, which Judge Gustafson treats as a motion.

Judge Gustafson is not amused.

“..,.petitioner’s motion is denied in full. The motion lacks merit to the extent it (1) re-argues petitioner’s objection to consolidation of these two cases, (2) asks the Court to compel a deposition (without demonstrating compliance with Rule 74(c)), (3) asks the Court to compel certain discovery (without showing its relevance) or to enforce her alleged rights under the Freedom of Information Act (which rights are outside this Court’s jurisdiction), (4) asks the Court to order respondent to cite (or to provide copies of) Internal Revenue Code sections beyond those stated in the notice of deficiency, or (5) asks the Court to order the IRS make corrections in its records concerning petitioner (which would require mandamus authority the Court does not have). To the extent petitioner’s motion argues some aspects of the merits of her case pertaining to her … tax liability, the Court motion is denied, since those contentions are intermingled with irrelevancies and frivolous contentions. Petitioner will have an opportunity at trial to prove what her actual liability is.” Order, at p. 1.

Now Judge Gustafson twice before cautioned Janice Marie to eschew frivolity or face the Section 6673 fastball.

“Nonetheless, petitioner’s recent filings have been replete with frivolous contentions. If, in making these frivolous arguments, petitioner is following the advice of persons claiming to be knowledgeable, then she should realize that she is being misled.” Order, at p. 2.

Janice Marie, you’re going to have to prove your income, credits and deductions for the year at issue, so get with it.

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