In Uncategorized on 10/24/2014 at 16:23

When a Judge admits that he is not all-wise, all-knowing– moreover, when he does not lustily join in Sir W. S. Gilbert’s immortal words “The Law is the true embodiment. Of everything that’s excellent. It has no kind of fault or flaw, And I, my Lords, embody the Law,”– then he truly gets a tip of my battered old Stetson.

And who else should receives this accolade today, but that distinguished jurist, The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Inveterate, Indefatigable Foe of the Partitive Genitive, The Honorable Mark V. Holmes?

[Unhappily, Aaron Copland is not here to favor us with a Fanfare for the Uncommon Man].

Judge Holmes says he learned something both from IRS and from Brenda Bradsher & Kenneth McCormack, Docket No. 17773-13, filed 10/24/14. And a Taishoff  “good job” to counsel for both parties, Thomas F. Virr, Esq., for Bren & Ken, and Brooke S. Laurie, Esq., for IRS.

Judge Holmes explains his bemusement: “The petition that Ms. Bradsher and Mr. McCormack filed included as an attachment an IRS notice that is on a notice-of-deficiency form but plainly stated that it is a disallowance of a refund claim. This puzzled the Court because it had never before seen such a notice, and thinking this might not be a deficiency case at all it issued an order to the parties to show cause why the case shouldn’t be dismissed for lack of jurisdiction.” Order, at p. 1.

But IRS was right. Here’s the chronology. Bren & Ken file return in Year One and pay tax. Bren & Ken file for refund of tax paid in Year Two. IRS denies refund and assesses deficiency in one single notice in Year Three. Bren & Ken timely petition.

IRS can deal with both in one notice, and its manual says so. See IRM

But wait, there’s more. “More importantly, as the parties patiently explained, IRC § 6512 contemplates treating the disallowed claim for a refund as a claim under our overpayment jurisdiction, so there is no problem with our jurisdiction. See IRC § 6512(b)(3)(C)(i). (There is even a somewhat similar case in which we’ve already explained why we have jurisdiction in these circumstance.)” Order, at p. 2. (Citation omitted, but note the case; it may come in handy).

“Having thus learned something new, there is nothing left for this division of the Court but to…” discharge the order to show cause. Order, at p. 2.

That’s what makes this so much fun–there’s always something to learn.


Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: