I don’t want to be accused of being a conspiracy theorist, or of ascribing to IRS a Machiavellian cunning that may just be the result of sheer happenstance, but there’s a Thoreauvian trout-in-the-milk quality to two recent Tax Court items.

For the first, see my blogpost “Another Taishoff ‘Oh Please””, 9/24/14.

There, IRS moved to close for duplication a timely petition, where taxpayer submitted duplicates by two different means on the last day for petitioning. This left the untimely petition as the last man standing, whereupon IRS could dismiss for want of jurisdiction. Ch J Michael B. (“Iron Mike”) Thornton didn’t let that move get past him.

Now for the latest. See my blogpost “Beat the Clock”, 11/11/14, which I posted when nearly unconscious upon my return from the Magnolia City.

There, the Judge With a Heart, STJ Armen, sustained the timeliness of a Tax Court petition that just beat a bankruptcy petition to the courthouse door. The 11 USC §362(a)(8) bar doesn’t fall until the bankruptcy petition is filed.

So what else is new?

Well, IRS moves to dismiss the Tax Court petition. And it just so happens that they move right after the bar is lifted. But “the law’s delay” means that STJ Armen’s order comes at the point where, if he had ruled the other way, taxpayer would have had exactly one day to file a new petition.

And of course if taxpayer missed the cutoff, or the order bouncing the petition had come a day later, too late, petitioner, you’re auf’d, as they say on the runway.

Takeaway–Practitioner, watch the clock and the calendar. Closely.

And that’s what happens when Tax Court is closed. I just go on posting.

That is, when you’re seeking to deduct rental real estate losses, size matters. I mean the size of the non-rental real estate income and the size of the rental real estate losses. Add imperfect contemporaneous (or near-contemporaneous) recordkeeping,  dash in many hours worked at non-rental real estate activities, and you have the perfect mixture for an audit, and an unsuccessful Tax Court litigation.

Now I’ve discussed this many times before, and won’t even try to dig out the blogposts wherein I did so.

But since school’s out today at 400 Second Street, NW, to honor us veterans, I thought I’d venture once more into the cliché.

My colleague Peter Reilly, CPA, over at Forbes.com (he’s in the big leagues), asked me if I had any thoughts about Howard C. Cantor and Patricia M. Allen, 2014 T. C. Sum. Op. 103, filed 11/6/14. And it’s a STJ Lew (The Right Spelling) Carluzzo opinion.

I hadn’t, because when I read it on 11/6/14, it looked like the many-times-told tale of someone deeply immersed in a non-rental real estate activity, who had some rental properties “on the side”, and wanted to deduct depreciation losses against ordinary operating income from the money-maker.

But Mr Reilly had an interesting take, which I’ll mention even though I disagree with it.

Mr. Reilly: “The NAICS code on his Schedule C was 811120, which stands for ‘Automotive, Paint, Interior, and Glass Repair’.

“Would we have had a different outcome or maybe no audit at all, if the code had been 28150 Glass & Glazing Contractors?”

“I don’t think preparers pay much attention to those codes.  Here is an instance where it just might have made a difference.

“Any thoughts?”

I answered that I thought most unregistered preparers probably think that NAICS is a television show about Navy cops-and-robbers. But that’s more than a trifle glib and condescending; it might could be that even registered or enrolled or otherwise Circ 230 preparers might fare no better.

After all, Howard’s returns were prepared by a CPA, and IRS did not assert either Section 6652 negligence or substantial understatement penalties, just a Section 6651(a)(1) late-filing addition to tax. 2014 T. C. Sum. Op 103, at p. 2 and at p. 5.

No, the bottom line is that Howard had north of $45K real estate type losses in each year at issue. And his gross receipts from his glass business were almost or better than $700K in each such year. Worse, he had no records to prove allocation of his hours (admittedly well north of the magic 750 hours) between real estate and non-real estate.

No, Mr Reilly, I think the numbers on Howard’s return that triggered the audit and the litigation weren’t NAICS, but rather dollars received and dollar losses claimed. And no hard numbers on hours spent.

 Personal Reflections

 Tax Court is closed, of course. So here are a few personal reflections. If you want some of my tax thoughts, skip to my next blogpost.

To my brothers and sisters on active duty, good luck, Godspeed and may you all arrive home safe, and all’s well.

To my brothers and sisters, fellow veterans, thank you again. It was an honor to be among you today.

It was great to see the turnout on Fifth Avenue and hear the cheers and thanks. I wish those not present could have heard them.

It’s all too easy for me to quote Kipling or Yeats and be cynical; it’s even easier to quote Shakespeare. Ol’ Will wrote a great speech that proves to me that he was a soldier, and not an officer.

It is the most condescending, patronizing effusion I can think of. And it’s just what one would expect from a higher-up who is sending other people to be maimed (in body, mind or spirit) or killed in a war that shouldn’t have been fought.

I’ll spare you what little erudition I have.

God bless America.

No, this is not the story of a romantic breakup. This is a brief review of ordinary-and-necessary, the Section 162 mantra, as told by Judge Gale.

Specifically, this is the story of Melanie L. Thomas-Kozak, as told in 2014 T. C. Sum. Op. 104, filed 11/10/14.

Melanie is an engineer for Sunoco, the oil company. Melanie claims all sorts of employee unreimbursed business expenses, the vast majority of which bite the unsubstantiated dust. Sunoco is mostly generous in its reimbursement policy.

I’m focusing here on Melanie’s boots. Now Sunoco’s reimbursement policy covered “clothing needed for weather or safety conditions”, 2014 T. C. Sum. Op. 104, at p. 4. So Melanie bought a pair of boots to wear on the jobsites she visited as part of her job.

“Petitioner testified that $280 of the disputed amount pertained to steel-reinforced metatarsal boots that Sunoco required all personnel to wear on jobsites. She produced a receipt to substantiate the purchase…. Petitioner testified that the steel reinforcement in the boots ran above the ankle and that the boots were required for safety on jobsites. She testified that she requested reimbursement from Sunoco but was denied it because the company believed reimbursing her would require it to reimburse all contractors at its jobsites as well. Sunoco’s reimbursement policy, however, stated that the cost of work-related clothing needed for ‘weather/safety conditions’ was reimbursable.” 2014 T. C. Sum. Op 104, at pp. 21-22.

“The cost of clothing is deductible as an employee business expense only if the clothing is required for the taxpayer’s employment, unsuitable for general wear, and not worn for personal use. The clothing must be unsuitable for use outside of the taxpayer’s work environment and not actually used outside of that environment.” 2104 T. C. Sum. Op. 104, at p. 22. (Citations omitted).

But Judge Gale is generous, even if Sunoco is not.

“We are satisfied that petitioner has shown entitlement to deduct the cost of the boots. We readily accept the boots’ safety purpose and their required use on job sites as plausible. It is clear the boots are not suitable for other purposes, and we accept petitioner’s plausible testimony that Sunoco refused reimbursement out of concern that it not incur an obligation to purchase similar boots for others (notwithstanding the formal terms of Sunoco’s reimbursement policy for safety-related clothing).” 2014 T. C. Sum. Op. 104, at pp. 22-23.

So despite tossing 82% of Melanie’s deductions in one year, and 35% in the other, Judge Gale does give Melanie the boot.

No, not the 1950’s quiz show, rather this is the story of Janetta Lee Perry, as told by The Judge With a Heart, STJ Armen, in the eponymous 2014 T. C. Memo. 231, filed 11/10/14.

This greeted me on my return from the Magnolia City and the Steel Magnolias resident therein, after a splendid visit with my nearest and dearest, punctuated by discussions of the infinite complexity of our tax law.

The clock plays the lead role in Janetta’s case. She started with a petition to reconsider the deficiency and penalty IRS bestowed upon her. Then, in a moment, in the twinkling of an eye, Janetta files bankruptcy.

STJ Armen: “On June 6, 2014, at 1:48 p.m. EDT, petitioner filed a petition for redetermination with this Court, which petition served to commence the instant case. See Rule 20(a). Later that same day, at 2:11 p.m. PDT, petitioner filed a voluntary petition with the U.S. Bankruptcy Court for the Northern District of California, which petition served to commence a bankruptcy case under chapter 7 of the Bankruptcy Code, 11 U.S.C. Thus, petitioner’s bankruptcy petition was filed approximately 3½ hours after petitioner’s Tax Court petition.” 2014 T. C. Memo. 231, at p. 3.

Now Janetta had been discharged and her case closed when IRS moves to dismiss, but note that the 60 days to petition after discharge and close per section 6213(f)(1) ends on Monday. So if IRS wins its motion, Janetta had best get en charette.

But IRS doesn’t win. The timing is as confusing as the recent switch from Daylight Savings Time to the winter blend, but basically Janetta filed her Tax Court petition at 10:48 a.m., her local (Northern California) time, and her bankruptcy petition at 2:11 p.m., her local time.

Those hard-laboring intake clerks at 400 Second Street, NW, flailing away with their date stamps, sure have helped the diligent petitioner. See my blogpost “What a Difference a Day Makes”, 11/1/11.

STJ Armen: “Petitioner filed her petition commencing the instant case with this Court before she filed her petition with the bankruptcy court, albeit by only a few hours. Because her case in this Court was commenced before the automatic stay came into effect, the automatic stay cannot serve to preclude its antecedent commencement. See 11 U.S.C. sec. 362(a)(8). Accordingly, the petition filed herein was not filed in violation of the automatic stay, and petitioner properly invoked this Court’s jurisdiction.” 2014 T. C. Memo. 231, at pp. 4-5 (Citation omitted).

Though timely commenced, Janetta’s case was stayed from going forward pursuant to 11 USC §362(a)(8) until issuance of the discharge and closure.

That happy event having occurred, IRS’s motion to dismiss is denied. Janetta can go ahead.

Fred L. Wagner’s counsel was running out of patience, and so was Judge Cohen. Fred’s main case had been pending for four years, and five (count ‘em, five) trial dates had been set, when a stipulation for settlement was executed both by Fred’s counsel and IRS’s counsel. There’s a related case with unresolved issues consolidated with Fred’s main case, but Fred’s counsel and IRS’s counsel were working on those.

Lo and behold, as a lamented colleague was wont to say, on the last day to move to vacate the decision entered pursuant to the stipulated settlement, IRS’s counsel so moves because “Respondent’s counsel is concerned that if the decision in this case is not vacated, the Court may be forced to try and interpret the basis for the parties’ settlement for taxable year 2005 in this case in order to render an opinion for taxable years 2006 and 2007 in….” the related case. Order, at p. 2.

IRS’s counsel claims that, because she and Fred’s counsel disagree on the impact of the settlement in the main case on the related case, there was no “meeting of the minds” on the stipulation of settlement.

Didn’t we just discuss this, you may ask.

Roger that, I respond.

See my blogpost “Check the File”, 11/5/14.

Judge Cohen doesn’t even have to read Judge Morrison’s words of wisdom, much less mine, as she tosses IRS’s counsel and her motion under the proverbial.

“Respondent does not cite any direct authority for the relief sought but relies on the catchall phrase ‘any other reason justifying relief from the operation of the judgment’ in Rule 60(b) of the Federal Rules of Civil Procedure. Respondent does not address those authorities that suggest that this is not a situation where relief is justified.” Order, at p. 2.

But Judge Cohen does address them, and the result doesn’t help IRS’s counsel.

“This Court has repeatedly declined to vacate a stipulation for settlement and is even less likely to set aside a stipulated judgment incorporating the agreed upon terms. Relevant cases were summarized in Dorchester Industries Inc. v. Commissioner, 108 T.C. 320, 335 (1997), aff’d 208 F3.d 205 (3d Cir. 2000) and in Stamm International Corp. v. Commissioner, 90 T.C. 315, 321-322 (1988).” Order, at p. 2.

Unhappily, IRS’s counsel ignores those cases.

Fred’s main case has been pending for four years, the related case for two years, and “The parties and the Court expended substantial efforts in narrowing issues before trial, and counsel were well aware of the relationship between the two docketed cases. If there is doubt about the effect of the decision in this case on the issues in the related case, that question may be resolved in the later case.” Order, at p. 2.

In any case, this case is going to trial in the Spring. With the stipulated decision in place.

Oh yes, the designated hitter is Fred L. Wagner, Docket No. 24556-09, filed 11/7/14.

You’ll doubtless remember the joust Securitas Holdings Inc. and Subsidiaries had with IRS over certain communications from its tax advisers, which ended up with Securitas and its subsidiaries losing their privilege because of a filing with the Illinois Insurance Department. You don’t? Well, see my blogpost “Privilege Lost”, 5/29/13.

Well, today Judge Morrison shows us how to retain privilege, while using the communications in litigation.

See Estate of John F. Koons, III, Deceased, A. Manuel Zapata, Personal Representative, et al., Docket No. 19771-09, filed 11/6/14.

Remember the late John and his inventive personal rep A. Manny? No? Then see my blogpost “Less Than Meets The Eye”, 4/8/13.

Judge Morrison, relying on FRE 502(d), crafts an order letting A. Manny put in the privileged material solely to determine the deductibility of certain legal fees in the Rule 155 beancount, but that nothing is waived for any other purpose, State or Federal.

IRS can contest the privilege, A. Manny can move for a protective order, which IRS can contest, and nobody waives anything.

Read the order. Good stuff for practitioners here.

Judge Dawson, a busy jurist just now, paraphrases Walt Whitman in Grace Foundation, R. S. Ohendalski, Trustee, 2014 T. C. Memo. 229, filed 11/6/14. And I apologize for the late posting, but I was engaged all day at the Fourth Annual Tax Structuring seminar, given by a Big Four accounting firm.

And a very fine presentation was given by a Director thereof, who would be subject to the ownership attribution rules of Section 318(a)(1)(A).

Anyway, R.S. Ohendalski is a generous soul, who is a wee bit tardy with filing a Form 990-PF for his Section 4797(a)(1) non-exempt charitable trust (private foundation). No doubt R. S. as trustee gave generously to various churches and charities, but an eight-year delay in filing a required return triggers a Section 6652(c) delinquency penalty, and $10K is the max. R.S. hits the max.

R.S. claims he relied on a professional, but proffers no evidence as to who was the professional in question, or why it took him eight years to file the return.

R.S.’s trump takes no tricks, although R. S. plays the Section 6751(b) card. Remember the Section 6751(b) trump? No? Then see my blogpost “Penalty Kick”, 7/17/14, when Larry and Lorna Graev played the card and slowed down a 40% overvaluation chop.

R.S. says IRS never had the appropriate supervisor sign off on the penalty.

No need, says Judge Dawson. “In considering Mr. Ohendalski’s argument the SO determined that although section 6751(b) generally requires the approval of a supervisor before assessment of a penalty, the section 6751(b)(2) exception to this requirement is applicable for penalties automatically calculated by electronic means. In reviewing the account transcript for the Foundation’s … liability, the SO determined that the assessment of the delinquency penalty was a transaction code 238, which according to the IRS’ automated data processing book is a computer-generated assessment based on the Foundation’s failure to timely file the required return. After further verification the SO concluded that assessment of the section 6652 delinquency penalty did not require management approval pursuant to section 6751(b)(2)(B).” 2014 T. C. Memo. 229, at pp. 6-7.

And that Appeals cited to the wrong Code section in the NOD avails R.S. naught. “Although Mr. Ohendalski correctly argues that the ‘Attachment to Notice of Determination’ erroneously refers to ‘Section 6552’ rather than ‘Section 6652’, we view it as simply a typographical error. We note that Mr. Ohendalski was not misled by the typographical error. In fact, Mr. Ohendalski’s … letter correctly refers to section 6652 (and not section 6552) and clearly indicates his understanding that section 6652 was the statutory provision at issue.” 2014 T. C. Memo. 229, at p.13.

Takeaway– The IRS’ computer trumps IRS’ personnel.

Judge Morrison has a lengthy designated hitter today, John W. Harris & Delilah E. Harris, Docket No. 24032-11, filed 11/5/14, which serves as a lesson to the busy practitioner: check the file before signing the stipulation.

Everything you said or wrote will be used against you.

IRS got the bank statement analysis wrong, and concedes they confused John’s attorney escrow account with his operating account. Thus, a quarter-million worth of deficiencies goes away.

And John and Del admit their passive real estate losses get suspended, so that deduction goes away.

The trouble comes when Al, John’s and Del’s attorney, gets confused about $72K of unreported income that Del got from the C Corp she and John control. Al seems to think that the non-employee compensation Del got somehow gets “washed” by the deduction the C Corp gets for paying that compensation.

According to Judge Morrison, Al is “an experienced tax attorney in private practice.” Order, at p. 2. Representing taxpayers in Tax Court is generally “private practice”, Judge; clearly John and Del don’t qualify for low-income tax clinic.

Well, experienced or not, Al does copy his clients on all correspondence, and signs off on the stipulation agreeing that the $72K is unreported income.

But the decision document embodying same doesn’t get signed, John and Del dump Al, and John and Del claim in Tax Court that the stipulation should be set aside based on mutual mistake.

No, says Judge Morrison, it wasn’t mutual. The only party who didn’t understand was y’all (I’m writing in the Magnolia City, remember).

Al said more than once, in writing, that the $72K was unreported income, and John and Del saw the letters. And the final stipulation, that they also saw before it was signed, said nothing about a “wash”.

Judge Morrison holds an evidentiary hearing. IRS’s counsel testifies about the “wash” statement. John and Del claim IRS’s counsel said it, and Al testifies he did, but IRS’s counsel says he didn’t.

Judge Morrison believes IRS’s counsel. Al is “prone to misunderstandings.” Order, at p. 14. Like how a deduction for compensation paid by a C Corp somehow obliterates the obligation of the payee to report same as income.

Howbeit, per Rule 91(b), counsel can sign stipulations, and when John and Del claim they’re not bound because they didn’t themselves sign, Judge Morrison gives them the bad news. They saw the correspondence and the stipulation, and Al was their agent. “His actions and mistakes are attributable to them.” Order, at p. 14.

I think Al already got The Phone Call.

Takeaway–Never rely on your memory. Before signing anything important, check the file.

Bloggers? Well, Maybe Not So Much

In the Magnolia City, visiting individuals who would be aggregated with me in many tax contexts, I thought I’d mosey down to the Bob Casey Courthouse at 515 Rusk Avenue and give a look-see to Courtroom 7006, where this week STJ Lewis (The Right Spelling) Carluzzo is adjudicating.

Well, standing in the hushed corridors, reminiscent of Alain Resnais’ “les salles, vaste, enorme, silent”, I wondered if STJ Lew and company had decamped. Not only “never is heard/ a discouraging word” on this range, there were no words at all at 9:00 a.m., CST.

So, knocking on the clerk’s door, I was able to ascertain that the trial, scheduled for a date and time certain to correspond with my presence, would not take place, as the parties had settled.

Wouldn’t it be loverly if Tax Court calendars, appropriately updated, were available online? I might suggest this at the judicial conference next May.

Judges like settlements. So do lawyers. But bloggers looking for copy? Maybe not so much.