We lawyers get too cynical too fast. I started out much as the Lord Chancellor in Iolanthe: I would never “assume that the witnesses summoned in force, In Exchequer, Queen’s Bench, Common Pleas, or Divorce, Have perjured themselves as a matter of course.”

In that Grove of Academe On The Hill Far Above (courtesy of Myron C. Taylor, Esq.), we were taught that cases are decided based on the weight of the credible evidence. But in after years I have been heard to quip that cases are decided based on the weight of the credible perjury. Especially when I lost.

But hear now The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Imperturbable, Indefatigable, Irrefragable, Illustrious and Irrepressible Foe of the Partitive Genitive, Mark V. Holmes.

It’s an off-the-bencher on a day when Tax Courtiers can take unscheduled leave or teletubby, so there are no opinions and no designated hitters.

It’s the story of Frederick Michael Young, Petitioner, and Rasheda O. Donner, Intervenor, Docket No. 16400-13, filed 1/6/15. And Judge Holmes does get an epiphany.

“This is an innocent spouse case in which everyone testified truthfully and credibly, unlike many innocent spouse cases. They may disagree but there has been not been the blatant dishonesty that plagues this particular area of tax law.” Opinion, at p. 3.

Great start! Honest, candid witnesses. That guarantees the outcome in such a case.

The parties don’t get what they want.

When Fred and Rash divorced, owing tax they properly reported but couldn’t pay because their jointly-owned-and-operated business hit bad patches, they wanted the tax bill split fifty-fifty. Fair enough; they both worked in the business, so the divorce decree said each must bear his or her half.

But taxes don’t work that way. Judge Holmes explains: “The parallels that are used for many married couples is like roommates who agree to share the utility bill; one side paying the electric bill one month and the other roommate paying the bill the second month. That may be a legally binding contract between those two roommates, but the utility company, if both names are on the bill, has the right to come after you both and the IRS is a little bit like the electric company in this regard.” Opinion, at p. 5.

There are exceptions, of course. I ask you, what would tax practice be without exceptions? The exception is our friend Section 6015(f). As there are no deficiencies, because no one challenges the returns Fred and Rash filed, Fred can get relief, if he can pass the factors tests, which, by virtue of his candid, forthright and honest testimony, he can’t.

IRS denied Fred’s request, but their reasons were “bizarre”, to use Judge Holmes’ term. They claim Fred filed a fraudulent return and made fraudulent conveyances. “There’s just no evidence of that in the record, there was no evidence at the trial. The Commissioner’s lawyers in this case didn’t defend this bizarre conclusion, and no doubt it offended Mr. Young and may have been one of the reasons that prompted him to file this petition seeking appeal.” Opinion, at pp. 7-8.

And Judge Holmes assures Fred that there’s no hint of any wrongdoing on his part.

Judge Holmes sums up: “So to summarize here we have a couple that’s divorced and a former husband who is compliant with his ongoing tax obligations. These factors weigh in favor of relief. The fact that he knew the taxes weren’t getting paid at the time that he filed the returns, weighs against relief, and all the other factors are neutral.” Opinion, at p. 10.

Tax Court can’t help Fred. But since the State court where the divorce was granted retained jurisdiction over joint debts, maybe Fred can get help there.

See my blogpost “Innocence is Bliss?”, 11/10/11, wherein I stated :” A repentant sinner saved by his wife’s tears, and an honest witness on a trial–proves the old saying–‘No good deed goes unpunished’–totally.”