How often have I lamented the modesty of Tax Court Judges who, fearing the notoriety of the designated order, repeatedly hide their light under the cliché.
And Judge Marvel does it again, in Marvel H. Cosner, Docket No. 1480-14L, filed 6/8/15.
This is the case of the missing petition, which the 400 Second Street, NW, gang turns up and which Judge Marvel files nunc pro tunc. That means “retroactive to Day One” for you human beings out there.
But in the meantime, IRS, who has opposed everything in sight, levies on Marv’s payments from his employer, so the liability (uncontested) is fully paid.
IRS claims they didn’t know about the retro petition, and the leading case (Greene-Thapedi v. Commissioner, 126 T.C. 1) says “once paid in full, no lien necessary and case dismissed as moot.”
OK, Greene-Thapedi is to CDP what Gregory v. Helvering is to deficiencies; the authors thereof should get royalties.
So even though Marv got his petition filed retroactively, presumptively triggering the Section 6330 stay on collection, IRS still got the money, no? So Tax Court has no general refund powers, and case dismissed, right?
Not quite.
“’A nunc pro tune order retroactively corrects an original record which is erroneous through inadvertence or mistake.’ Turkoglu v. Commissioner, 36 T.C. 552, 554 (1961). The Court’s July 22, 2014, Order found that petitioner had timely filed a petition with respect to the March 2, 2012, notice of determination and ordered that the petition be filed nunc pro tunc as of April 5, 2012. Accordingly, although he did not then know it, respondent [IRS] was prohibited from serving the December 6, 2013, levy. See sec. 6330(e)(1). Pursuant to section 6330(e)(1), the Court may enjoin an unlawful levy notwithstanding the general prohibition on such injunctions under section 7421.
“Greene-Thapedi v. Commissioner, 126 T.C. 1, which did not involve a premature levy, does not appear to preclude the Court from taking appropriate corrective action following a premature levy….” Order, at p. 2.
I depart from my usual practice of omitting dates, because here it really matters. And read the whole order. It’s really good.
But wait, there’s more!
“The reasoning of Greene-Thapedi implies that the Court may order respondent to retum the proceeds of an unlawful levy action even if the unlawful levy fully satisfied the taxpayer’s theretofore unpaid tax liability. Indeed, in Greene-Thapedi the Court expressly observed that it had previously ‘exercised its inherent equitable powers to order the Commissioner to return to the taxpayer property that was improperly levied upon’. Moreover, any other conclusion would allow the Commissioner to moot any case brought under section 6330(e) by unlawfully executing a premature levy.” Order, at p. 3 (Citations omitted, but save them for your memo of law).
But remember, Marv petitioned NOD off a CDP. So Judge Marvel has to sort that out before deciding whether to order IRS to give Marv what they grabbed.
Game on for Helena, MT, June 15.
And Judge Marvel, if you worked this hard on this order, designate it. Please. I wish I could bill for the time I spent digging this gem out.
Taishoff Law 
Why don’t the courts designate all orders?
Do they have some kind of guideline for what makes the cut and what not?
LikeLike
From the Tax Court website: “Orders appearing on Today’s Designated Orders are designated by the individual Judges, Senior Judges, and Special Trial Judges who issued the orders. Designated orders may exclude routine, nonsubstantive orders such as scheduling orders or rulings on motions for extension of time. Designated orders are not a complete inventory of all orders of the Court nor are these versions official documents of record. Designation practices of Judges vary; some select more of their orders for posting here than others.”
Designating all orders defeats the purpose. 99% of orders are routine: “pay the sixty bucks, file a reply, file a status report.” That said, some judges designate too many orders, most too few.
LikeLike