In Uncategorized on 08/29/2014 at 20:10

No, not the 1982 Star Trek baddie (different spelling, he) nor yet the late actress and comedienne Madeline (and her performance in the 1974 Mel Brooks cult classic Blazing Saddles is a fond memory). No, this is Kathleen Kahn, Docket No. 1517-13L, filed 8/29/14, a designated hitter off the bat of STJ Lewis (“Our Name Is Our Fame”) Carluzzo, a walk-off hit before the last weekend of summer.

Kathleen is wroth because Appeals done her wrong, she says, and wants summary judgment in Tax Court. And she won’t go back to Appeals, even though IRS wants a remand.

Appeals has taken its lumps lately, mostly at the hands of that hard-charging but low-billing attorney-at-law Honest Eric William (EW) Johnson. In witness whereof, see my blogposts “Abate, Don’t Debate”, 8/25/14, and “Honest tax representation at reasonable rates”, 8/28/14). But Kathleen is on her own here.

And her objections to IRS’ remand request and her written statement in lieu of appearance at the argument of her summary judgment motion didn’t hit STJ Lew’s radar until after the hearing.

“During the hearing, however, it was clear that the Court intended to deny petitioner’s motion and, subject to conditions discussed at the hearing, grant respondent’s [IRS’] motion. Concerned that the remand would unnecessarily delay the matter further, the Court was persuaded by respondent’s argument that a remand would be beneficial because it would allow for respondent to review the administrative process giving rise to the underlying liabilities in dispute in this matter. Although it would seem that a remand could only work to petitioner’s favor, in her objection petitioner opposes the remand because: (1) it would cause further delay; and (2) she did not expect that the matter would be given fair consideration by respondent’s settlement officer.” Order, at pp. 2-3.

That’s something of a riposte to Judge David Gustafson’s sermonette to Barb and Wel Delon in my blogpost “I’m From the Government and I’m Here to Help”, 8/20/14.

So STJ Lew finds questions of fact and jurisdiction in Tax Court to review Kathleen’s liabilities de novo.

“It is clear from petitioner’s submissions that she does not want to participate in further administrative proceedings. Mindful that we have jurisdiction in this matter to review, de novo, the underlying liabilities here in dispute, we weigh the likely benefits of a remand against petitioner’s (and the Court’s) concerns about any additional delay that a remand might cause. In so doing, we find that the scale tips ever so slightly in petitioner’s favor.” Order, at p. 2.

So no summary judgment, no remand, let IRS answer or amend its answer, and Kathleen need not reply, as any allegations in an amended IRS answer will be deemed denied.

Takeaway 1- Note Rule 50(c). You can make a written statement in lieu of showing up for a hearing on a motion. This saves shlep time (and money).

Takeaway 2- Note that skipping a remand may be good tactics. Don’t always take the bait without thinking. IRS may be using the remand to clean up its act, as seen in my blogposts aforesaid.




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