Attorney-at-Law

“I MUST MAKE AMENDS” – PART DEUX

In Uncategorized on 06/10/2015 at 15:53

Clearly today is a one-off in Tax Court.

Just as Ch J Michael B. (“Iron Mike”) Thornton deals with Rhonda D. Harrell’s amendments (to her untimely petition and her 1040), q.v. my blogpost “I Must Make Amends,” 6/10/15, here’s The Great Dissenter (honorifics omitted as it’s been a long day), His Honor Judge Mark V. Holmes, with Scott Kimrey Goldsmith, et al., Docket No. 13335-12, filed 6/10/15, a designated hitter also dealing with an amendment.

Scott Kim is just as far out of luck as poor Rhonda, although Scott Kim’s medical situation is not at issue.

Trial is set for June 15. Scott Kim moves to dismiss and to amend (there are two companion cases by the way, involving Scott Kim and his company).

“The proposed amended petitions are very similar to the current petition. Respondent [IRS] points out that they add no new issues, but do change some of the amounts that petitioners claim that they can prove. Tax Court Rule 41(a) provides that when more than 30 days have passed after an answer has been served, ‘a party may amend a pleading only by leave of Court or by written consent of the adverse party, and leave shall be given freely when justice so requires.’ Respondent points out that granting the motion would restart the clock on another answer – requiring yet another continuance in these thrice-continued cases. He also states that the amended petitions raise no new issues, so the failure to allow the amendment will in no way impede petitioners from presenting their cases. The Court will therefore deny this motion.” Order, at p. 1.

Any thought to post-trial motion conforming pleadings to proof, if the only issue is the numbers? If IRS admits it’s not so ambushed by the new numbers as to be unable to defend, go for it. And remember Rule 41(b) tried-by-consent.

As for the motion to dismiss, that’s a head-scratcher. Nothing new here.

“Petitioners’ motion to dismiss for lack of jurisdiction is based on their assertion that ‘assessments by Respondent were made more than three (3) years after the applicable tax returns were filed,’ plus various doctrines of estoppel and preclusion. The statute of limitations and these other doctrines are all defenses to a determination of a deficiency (and oddly, defenses not pled by either petitioner), not a ground to dismiss for lack of jurisdiction.” Order, at pp. 1-2. (Citations omitted).

Bad day for Scott Kim.

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