In Uncategorized on 06/18/2015 at 16:31

Rudy Kipling’s advice isn’t good advice only for those “marching on relief over Injia’s sunny plains, a little front o’ Christmas time and just be’ind the rains.”

Always put your best foot first. Facts, if you have them.

Dr. Ibeanyi Obiakor has suffered enough, and I’m sure his counsel have, or will, so I’ll follow the other old Army advice “no names, no pack drill.” Anyway, the case is 2015 T. C. Memo. 212, filed 6/18/15.

For reasons STJ Armen (The Judge With a Heart) found “inexplicable,” the properly-addressed and properly mailed Letter 1153, hitting up Ibe for the TFRPs his struggling state-of-the-art medical facility owed, was returned “undeliverable.”

Ibe got the NITL and timely petitioned, but the SO said he’d had his chance to contest the amount, but he blew it.

We all know that “A taxpayer may also challenge the existence or amount of the underlying tax liability but only if the taxpayer did not receive a statutory notice of deficiency with respect to the underlying tax liability or did not otherwise have an opportunity to dispute that liability. Sec. 6330(c)(2)(B).” 2015 T. C. Memo. 212, at p. 12.

Now mailing is sufficient to sustain the assessment of TFRPs; the assessment is good even if the responsible person didn’t receive the Letter 1153.

But right to contest depends upon receipt. “On the other hand, a Letter 1153 that was not received, but was not deliberately refused, by a taxpayer does not constitute an opportunity to dispute the taxpayer’s liability.” 2015 T. C. Memo. 212, at p. 16. (Citation omitted).

And no one claims Ibe ducked the Letter 1153 or refused to pick up his mail.

OK, but though Ibe raises the issue of computation, he never gives his side of the numbers. And he doesn’t give the SO numbers on his economic hardship, until he hands over some that show he can afford to pay a lot more than he first claimed he could.

So even though STJ Armen assumes the SO’s error of law (mailing is sufficient to bar dispute of the amount of TFRPs) prejudiced Ibe, and although Ibe claims there are substantial questions about the numbers, he never puts in any argument or evidence, and goes on a Rule 122 stipulated set of facts.

And loses.

Now lest you think that this is the typical unrepresented innocent playing the pearl fisher “going all naked to the hungry shark,” STJ Armen is at pains to note that “The Form 12153 was signed and submitted by petitioner’s authorized representative, an attorney, who continued to represent petitioner throughout the administrative phase of this case (and who, coincidentally, is also admitted to practice before this Court). A second attorney, but from the same law firm as the first, later subscribed the petition that commenced the judicial phase of this case, and that second attorney continues to represent petitioner. In short, petitioner has been represented by counsel at all relevant times.” 2015 T. C. Memo. 212, at p. 5, footnote 2.

Takeaway—If you have facts, use them. Anyway, put your best foot first.


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