Attorney-at-Law

I’LL SAY HE’S OBLIGING

In Uncategorized on 08/22/2014 at 16:57

Gotta tell ya, Judge David Gustafson is obliging as all get-out. Just two days after I ranted about his not designating his useful and instructive orders, he’s got two (count ‘em, two) designated hitters today, and they are really obliging and instructive.

If anybody cares, my rant, that seems to have inspired Judge Gustafson’s emergence from his wonted modesty, is to be found at the end of my blogpost “I’m From the Government, and I’m Here to Help”, 8/20/14.

But Judge Gustafson came through in fine style today.

First to the plate is (or are) Kimberly Warren & Leslie Warren, Docket No. 21532-13, filed 8/22/14. Kim & Les claim they mailed their petition on Day 90, but the petition and the properly addressed but not postmarked envelope containing same arrived thirteen days later. Kim & Les claim they went to the post office on Day 90 and posted off the envelope with petition securely therein contained.

We all know that Section 7502 says “filed when mailed, but mailed means USPS postmark”. Kim & Les “…argue that section 6213(a) or section 7502 does not require the petition to be filed in this Court within the 90 day statutory period.” Order, at p. 2.

Of course that goes down trailing smoke and flames. So it looks like Kim & Les are finito.

Especially since the SNOD from which Kim & Les petitioned states their address and their petition states the same address, and said address located in the Great State of Tennessee. The Great State of Tennessee is nestled within the bounds of the Sixth Circuit. And Golsen-izing, Judge Gustafson finds that Sixth Circuit says taxpayers who send petitions by anything but certified or registered mail do so at their peril.

But Judge Gustafson, ever obliging, throws the rope: “We point out the following to the Warrens: Rule 162 permits a party to file a motion to vacate a decision within 30 days after the decision has been entered. If the Warrens wish to move the Court to reconsider this order (e.g., by presenting additional legal authorities, or by showing that they resided other than in the Sixth Circuit when they filed their petition), then they may appear at the calendar call in Columbia on September 8, 2014, and make an oral motion for the Court to vacate the decision. In the ordinary course this case would not be called (since it will have been dismissed), so if they intend to make such a motion, then they should arrive early on September 8 and should advise both the IRS counsel and the Court’s trial clerk that they are there and wish to make a motion.” Order, at p. 4.

Now that’s really obliging.

Not to be outdone, Judge Gustafson has the same handy tip for Gerald P. New, Docket No. 29161-12L, filed 8/22/14.Gerry was a wee bit casual in responding to IRS’ requests for information to work out a collection alternative, and never bothered returning Judge Gustafson’s phonecall.

Not a good idea, Gerry. There are Tax Court judges who get mighty peevish when ignored. But Judge Gustafson’s good nature shines through.

Although he tosses Gerry for failure to prosecute, he has the rope ready.

“We point out the following to Mr. New: Rule 162 permits a party to file a motion to vacate a decision within 30 days after the decision has been entered. If by September 22, 2014, Mr. New has obtained information that would show that his tax liability has been paid to an extent greater than the IRS acknowledges, or would show that he is eligible for a collection alternative, or would otherwise show that this decision should be vacated, then he should appear at the calendar call on that date and make an oral motion for the Court to vacate the decision. In the ordinary course this case would not be called (since it will have been dismissed), so if he intends to make such a motion, then he should arrive early on September 22 and should advise both his IRS counsel and the Court’s trial clerk that he is there and wishes to make a motion.” Order, at p. 2.

Now Judge Gustafson has done everything but offer to bring coffee and Krispy Kremes for Kim & Les, and Gerry, to the calendar calls.

And he’s even designated these orders so I didn’t have to spend an extra hour digging them out, on a cloudy Friday afternoon in August.

Way to go, Judge Gustafson.Thank you, Your Honor.

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