Attorney-at-Law

THE WINNING SHIFT

In Uncategorized on 08/19/2015 at 16:09

Tax Court aficionados rarely see a Section 7491(a) burden-of-proof shift attempt that succeeds. Even when that rara avis alights at the Glasshouse at 400 Second Street, NW, IRS almost always wins.

The garden variety shift attempt ends with the Judge blowing off the shift, deciding on the preponderance of evidence, and petitioner loses anyway.

But today we have a protester playing the shift, and winning a dependency exemption deduction on account of the cohabitant of his little grass shack in Elele, Hawaii.

The pro se shifter is Steven Arthur Shimanek, 205 T. C. Memo. 165, filed 8/19/15.

Steve starts off claiming that the $31K he earned on the Garden Isle wasn’t taxable because he wasn’t an employee of the US of A. He admits earning the money on brief, but throws in the old protester jive. Of course, Judge Swift blows this off without even citing Cain v. Com’r.

Steven Arthur has another string to his bow. He claims IRS disallowed his dependency exemption deduction for his commonlaw spouse, Ms. Aleta T. J. Napoleone. He claims Ms. Aleta T. J. lived with him more than half the year at issue, had gross income less than $3500 that year, and that Steven Arthur himself provided more than half of Ms. Aleta T. J.’s support.

Judge Swift likes Section 152(d)(1)(A)-(C), (2)(H). And IRS doesn’t play the Section 152(f)(3) “violation of local law” gambit, although maybe that’s not a winner in The Aloha State, even if, as I am told but do not guarantee or warrant, The Aloha State doesn’t recognize commonlaw marriage.

After all, Steven Arthur wanders around. When this case was tried he was in American Samoa; maybe he found Ms. Aleta T. J. in a state where commonlaw marriages are recognized before arriving on the Garden Isle (and I can attest from personal knowledge that it is beautiful).

Howbeit, IRS claims Steven Arthur has no evidence of his assertions re: Ms. Aleta T. J.

“In support of his entitlement to a dependency exemption deduction for Ms. Napoleone, petitioner has produced and respondent has stipulated into evidence a document entitled ‘Affidavit of Dependency’ signed by Ms. Napoleone in which she states that during [year at issue] she lived in petitioner’s home, she had gross income of less than $3,500, and petitioner provided more than half of her support.

“Respondent notes that under Rule 143(c) ‘Ex parte affidavits or declarations * * * do not constitute evidence.’ However, in the preamble to the stipulation relating to the above document, respondent expressly waives all evidentiary objections relating thereto except relevancy and materiality. Accordingly, Ms. Napoleone’s statement will be considered as evidence in support of the claimed dependency exemption deduction.” 2015 T. C. Memo. 165, at p. 5.

So Steven Arthur has jumped the Section 7491(a) hedge by providing “credible evidence” of his assertion. Ms. Aleta T. J.’s ex parte affidavit is clearly material and relevant.

Now for the win. IRS faces the Michael Corleone situation.

IRS has no evidence that Ms. Aleta T. J. has told anything but the truth, the whole truth and nothing but the truth.

Having failed to sustain their burden of proof, IRS loses.

Steven Arthur, albeit shifty, has won.

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  1. It seems that the shift is still unwarranted. J. Swift seems to have ignored the limitations in 7491(a)(2). It seems unlikely that someone making frivolous arguments would have met those requirements.

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  2. mbf1144, Good point. The shift is really dicta. Judge Swift could, and maybe should, have played the preponderance-of-evidence gambit; Aleta T. J.’s affidavit, which IRS stipulated in, is evidence despite the Rule 143(c) roadblock. And IRS has only the Corleone ploy. Preponderance goes to Steven Arthur, frivolity merchant though he may be.

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