In Uncategorized on 12/23/2014 at 15:34

The nasal snarl of the late Jack Webb is echoed by STJ Lewis (“Great Name, Judge”) Carluzzo in John T. Killebrew, Docket No. 16766-14L, filed 12/23/14. STJ Lew is a little too free with his designated hitters sometimes, but this isn’t one of them.

J.T. claims he should be in CNC, not levied, and responds to IRS’s summary J that his disagreement with Appeals’ NOD is a “genuine issue of a material fact”, which should defeat summary J.

No it isn’t, and no it doesn’t, says STJ Lew.

“As we view the matter, a dispute between the Commissioner and the taxpayer over whether a settlement officer has fulfilled the obligation imposed by section 6330(c)(3)(C) does not give rise to a ‘genuine issue of material fact’ as those words are used in the context of a motion for summary judgment. Rather, to the extent that such a dispute needs to be resolved, it is appropriately resolved as part of our role in reviewing whether the Commissioner’s determination to proceed with a particular collection action is an abuse of discretion, regardless of whether the resolution is by summary adjudication or otherwise.” Order, at p. 2.

But J. T. may have something after all, so maybe IRS doesn’t get a walkoff.

“It appears that there might be a dispute between the parties with respect to petitioner’s income at or around the time the notice was issued. If so, this dispute is a dispute as to a ‘material fact’ because the settlement officer’s rejection of petitioner’s collection alternative seems to be based entirely on information uncovered by the settlement officer with respect to petitioner’s then current income. Although petitioner generally denied earning or receiving any income during the relevant period, he has not, on an item-by-item basis, directly and specifically responded to the settlement officer’s claim, and his generalized denial is not sufficient to raise a ‘genuine issue’ as to the fact of his financial status as of the relevant time. See Rule 121(d).” Order, at pp. 2-3.

So J. T. is out, right?

Not quite, because STJ Lew is possibly feeling some seasonal generosity. He offers J. T. time to file a supplement addressing chapter and verse each item of income Appeals claims he got.

Happy holidays, J. T.


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