Today Judge Lauber instructs us how to call a penalty in Gale Gargiulo, Petitioner and Louis Gargiulo, Intervenor, Docket No. 2893-14, filed 12/12/14.
Judge Lauber denies both Gale’s motion for partial summary J and her Rule 91(f) fact establishment motion. Judge Lauber raises one forearm vertically held in front of the body with an open fist facing away from the referee’s chest (closed fist for a HS referee); the other hand grasping the first arm’s wrist. Illegal use of the hands and arms, Gale.
Gale claims Section 6015 innocence. She divorced Louis while Louis was stuck at Fort Dix.
Now I was once stuck at Fort Dix, but that was just overnight, the night being October 14, 1969. I won’t forget it, having come into McGuire AFB on an evening flight from Southeast Asia via Yakota and Seatac. But I could leave the next day, and did I ever!
Louis is not so lucky. Louis was staying at FCI Fort Dix Camp, a Federal prison, when Gale dumped him, and only got out to home release last month. Louis is not free to wander until some time next February, assuming he plays nice.
Judge Lauber is not thrilled with Gale’s tactics. “As a consequence of the divorce, petitioner was awarded an office building in which many of intervenor’s personal and business records were stored. Despite several requests, petitioner has not permitted intervenor or his brother (acting on his behalf) to obtain access to any of the documents or records (including electronic records) stored in this office building. Intervenor has filed with the Superior Court of New Jersey a motion to recover these records, but his hearing on that motion will not occur until January 2015.” Order, at pp. 1-2.
Apparently the lanes on the George Washington Bridge are not the only thing that runs slow in New Jersey.
But Gale is nowise slow. She doesn’t let Louis or Bro see any paper, but moves ahead to bail on whatever taxes are owing from their nuptial days.
Remember Branerton. Voluntary discovery is “the bedrock of Tax Court practice.” Play nice; motions don’t get granted until someone stops playing nice.
“Without copies of his personal and business records, intervenor cannot honestly and fully respond to any proposed stipulations or motions for summary judgment. He was released from prison a month ago and is currently serving a period of home confinement. It is unreasonable for petitioner to expect him to stipulate to facts and respond to motions for summary judgment, while simultaneously denying him access to the records he needs in order to respond intelligently. The Court expects petitioner to cooperate with respondent and intervenor by engaging in informal discovery, which requires that petitioner allow intervenor access to his personal and business records that are under her control. Only upon a showing that informal discovery efforts have failed will we entertain motions by petitioner to compel stipulation, deem facts established, or otherwise impose sanctions.” Order, at p. 2.
Anyway, as to summary J, burden is on Gale to show no material fact issue exists, non-movant (Louis) gets benefit of doubt, and without discovery there’s no way of knowing whether such an issue exists or not.
Louis moves for continuance of trial, which Judge Lauber grants.
Now Gale and Louis can send in status reports every 60 days, and Judge Lauber will see when he can try this case.
I note that Gale is represented by a firm of attorneys with long-time Tax Court experience. This was not their finest hour.
Taishoff Law 
Justice Delayed is Justice Denied.
Ordinarily, I am a champion of the unrepresented & I ask the government to assist them. What your comments fail to balance is that the Petitioner here is the adjudicated victim. The status as victim isn’t posturing; it is the verdict of the Courts of the State of New Jersey. [see opinion below] Intervenor’s filing in the Tax Court is designed to avoid doing an end run around Full Faith and Credit. The question we should be asking is why is the IRS chasing the victim and ignoring the Constructive Trust established for its benefit by the New Jersey Courts. The question here is why is the government refusing to stipulate documents that are clearing authentic and admissible in evidence. I consider the protection of the victim among this firm’s “finest hours.” I consider protecting the integrity of the orders of the Courts of the States of New Jersey among our “finest hours.” I consider protecting the Tax Court from dealing with an Intervenor that has no skin in the game among our “finest hours.” After you read the documents below, please consider what the victim has gone through and whether in this instance, justice delayed could really be considered justice denied. I respect and admire the Court’s need and desire to protect the rights of the self represented. My job, however, is to get justice for the victim and protect her from any further abuse. I implore your readers to read the documents below when they consider whether this representation is among our finest hours.
Motion to Compel Payment
https://drive.google.com/file/d/0B91Q7zmwVCjzaGM4dm1KX2NVckk/view?usp=sharing
Motion to Compel Stipulation
https://drive.google.com/file/d/0B91Q7zmwVCjzV1pMajhOSGZkdzA/view?usp=sharing
New Jersey Court Order
https://drive.google.com/file/d/0B91Q7zmwVCjzaGM4dm1KX2NVckk/view?usp=sharing
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Link for Motion for Summary Judgment –
https://drive.google.com/file/d/0B91Q7zmwVCjzcWJ0QkNnbEVVdW8/view?usp=sharing
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Louis may be as odious a character as Mss. Son and Gale Gargiulo assert the New Jersey Court found him to be. That is not the point of Judge Lauber’s order.
The motions he denied were based upon issue preclusion arising out of the New Jersey divorce proceedings, as the papers Gale’s counsel have attached to the above comments show. I of course had no access to those papers prior to the comments I received today, 12/14/14, after I made the blogpost to which these comments are attached some days earlier.
Howbeit, IRS was not a party to the New Jersey proceedings. IRS is not precluded from asserting whatever claims it may have. As Judge Halpern remarked in Stephanie Lynn Christie, a.k.a. Stephanie Lynn Foran, Petitioner, and John Foran, a.k.a. Arthur J. Maurello, Intervenor, 2014 T. C. Sum. Op. 27, filed 3/26/14, “Respondent [IRS] was not a party to the proceeding giving rise to judgment. We have, on numerous occasions, held that the Commissioner is not bound by a provision in a divorce agreement allocating tax liability. See, e.g., Pesch v. Commissioner, 78 T.C. 100, 129 (1982). “ 2104 T. C. Sum. Op. 27, at p. 9, footnote 3.
Yes, I know you can’t cite a Sum. Op. for anything, but look at the reasoning and the full-dress T. C. opinion cited.
If the documents Louis seeks to introduce in Tax Court are bogus, and have been adjudicated to be bogus, he may be precluded from introducing them to Gale’s detriment. Louis’ credibility may be as worthless as Mss. Son and Gale Gargiulo assert.
But again, IRS was not a party to any of these proceedings. Louis’ criminal conviction did not adjudicate income tax liabilities as between Louis and Gale, or as between either or both of them and IRS; even conviction for fraudulent filing or non-filing wouldn’t necessarily establish what Louis owes IRS.
Finally, follow the money; Gale got the office building in the divorce. How great a part of the marital property (or even combined martial and non-marital property) the office building constituted is not explained.
If the office building was worth enough, IRS’s might well decide to see just how innocent Gale was, notwithstanding Louis’ elsewhere-adjudicated odious character.
And while counsel may be thoroughly imbued with the innocence of their client and the rightness of the client’s cause, the judicial process still recognizes the rights of the guilty.
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In Sheridan v. Sheridan, a New Jersey court concluded that attorneys are ethically required to report wrongdoing and judges should not sit mute in the face of acknowledged, demonstrated or potential wrongdoing, and hence, a judge’s obligation to report is even more expansive [than an attorney’s obligation] and the judge should report “all evil heard and seen.” Thus, although the IRS is never a party to NJ matrimonial actions, consistent with Sheridan the NJ Court imposed a constructive trust on several of Intervenor’s assets to ensure payment of the Unpaid Taxes. In this regard, the NJ Court stated as follows:
The only unencumbered property in this case is 199-201 Summit Ave . . .Court orders that Defendant’s share in the LLC be held in a constructive trust so that the Defendant is unable to transfer, encumber, or alter his interest in the LLC. . . .The Court then awards three separate judgments to be secured through separate liens against Defendant’s share of real estate owned by 199-201 Summit Ave., LLC. One judgment in the amount of $257,094.22 for the IRS lien pending the final outcome of the Defendant’s appeal of the innocent spouse status
The NJ court order implicates three important issues:
1. Why hasn’t the IRS collected from the constructive trust established by the New Jersey Court expressly for its benefit?
2. Why doesn’t the Tax Court like every other Court in the federal system give Full Faith & Credit to the judgment of the New Jersey Courts? The issue here in dispute was fully litigated in the New Jersey Courts. New Jersey’s Entire Controversy Doctrine (i.e., an expansive version of res judicata) has been respected by the District Courts within the Third Circuit.
3. Along the same lines, although we want to protect the rights of the felon, should the IRS or the Court, allow the felon to circumvent a final non-appealable order of a state court affecting the parties property rights (i.e., why hasn’t the court dismissed Intervenor’s Notice based on a failure to state a claim for which relief can be granted).
The NJ Court established a trust to pay the taxes in dispute. Neither the IRS nor the Court would have to deal with the innocent spouse issue if the IRS foreclosed on the lien established expressly for its benefit. Doesn’t it bother you that the wife adjudicated to be an victim needs to re-litigate a case because the IRS does not made an effort to collect from the constructive trust.
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Not wishing to prolong this exchange, I would note only that IRS was not party to any of the New Jersey proceedings. Therefore, full faith and credit and collateral estoppel (whether claim preclusion or issue preclusion) arguments are inapplicable.
No one is bound by judicial proceedings to which they were not a party, were not in privity, and over whom the court in question never obtained jurisdiction.
IRS is not bound to levy upon trusts of any kind. See Bruce M. Kraft, 142 T. C. 14.
In any case, there is no point arguing with me or my readers (few in number but mighty in determination). AFAIK, Judge Lauber does not read my blogposts, much less any comments thereupon.
Your thirty-day time limit to move to vacate or to reconsider (whichever you choose) is running. Better to argue with Judge Lauber, if you so choose.
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Not arguing; just a fun exchange. It isn’t the IRS that is bound, it is the intervenor. The Court can’t give him relief. Even if the Tax Court finds that Petitioner isn’t an innocent spouse, Intervenor owes that tax and, pursuant to the State Court Order has to indemnify Petitioner for the Tax. The simplest thing for everyone involved is for the IRS and the Court to order Intervenor to do what the law already requires.
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