Really, He Isn’t

On a day bereft of opinions or designated orders, I’m scraping the bottom of the cliché to find some blogfodder.

After museum-trudging around Munich, I’d like to open that half-litre of Löwenbräu Dunkel, sip it slowly and get some sleep. But stern attention to duty forbids, so here’s the aforesaid scraping.

A lawyer, whom I’ll designate as LD, is subbed in to James R. Koncilja & Monica Koncilja, et al., Docket No. 26204-11, filed 10/20/15. No biggie, right? We’ve all been subbed in, or subbed in others, and it’s usually handing over, or receiving, the file, and filing and serving the sub notice (in Tax Court the Form 8, but only one per customer; see my blogpost “Separate Checks,” 9/1/15). I’ll leave the fee issues to one side, lest the intro be longer than the subject.

So LD comes in, but the subbers-in only represented Jim and not Monica. And so does LD.

But Monica files an Amendment to Petition pro se, fully ratifying the petition.

LD makes some filings thereafter, but he says they’re for Jim only. However, the case is still captioned in both names.

LD never represented Monica, and never said he did. To the contrary, LD always said he was filing for Jim and no one else.

There are five (count ‘em, five) docket numbers related to this case, so LD files a motion to withdraw as Monica’s counsel in all of them.

But Monica’s name appears on 26204-11 only.

Judge Paris quickly sorts this out.

LD’s motion is stricken as to the four cases in which Monica isn’t a party; it’s irrelevant. His motion is moot in the case in which Monica is a party, for the obvious reason that one cannot withdraw as counsel if one never was counsel to begin with.

Judge Paris takes a leaf from Alex Pope, poet and didact, whose 1711 Essay on Criticism contains this sound advice: “Men must be taught as if you taught them not; And Things unknown propos’d as Things forgot.”

Of course this goes for women too, so she counsels Monica: “Petitioner Monica Koncilja is reminded that she has ratified the petition pro se and that the attorneys representing the other parties in these consolidated cases cannot respond to Orders of the Court on her behalf without entering an appearance on her behalf.” Order, at p. 3.

He’s not your lawyer, really he isn’t.

I really had to dig to find Troy D. Hardy, Sr. & Emily K. Hardy, Docket No. 25543-15S, filed 10/19/15, because Ch J Michael B. (“Iron Mike”) Thornton doesn’t designate his orders, even the good ones like this.

The Hardys are in a correspondence duel with IRS, who hits them with a Form 4569 Info Doc, four (count ‘em, four) Forms 4549 blowing up some deductions per Section 183, a Form 886-A Explanation, and finally a Notice CP504 grab-your-State-refund notice. And the Hardys attach all same to their petition.

Now the combat-hardened preparers I’m writing for know that none of these types are anything to the point for Tax Court jurisdiction. While the CP504 grab is issued per Section 6320 or Section 6330, Section 6330(f) expressly states it’s not a NOD.

So the Hardys, who promptly petitioned, and attached all this paper to their petition, are out, right?

Well, yes.

IRS moves to dismiss, but at the same time hits the Hardys with a SNOD.

Ch J Iron Mike: “Petitioners were served with a copy of respondent’s motion to dismiss and… filed a notice of objection. Therein, petitioners recounted the convoluted nature of the underlying examination of their… returns, which involved issuance of four Forms 4549. They further explained that a notice of deficiency had only recently been sent. Consistent therewith, attached to the objection was a copy of the referenced notice of deficiency… issued to petitioners….” Order, at p. 2.

“Thus, a parsing of the record in this case reveals that, while it is clear petitioners have been engaged in an extensive and ongoing correspondence with the IRS regarding multiple taxable years, respondent’s jurisdictional allegations stand unrebutted. Critically, none of the communications reflected in the record of this case constitutes, or can substitute for, a notice of deficiency issued pursuant to sections 6213, I.R.C., or a notice of determination issued pursuant to sections 6320 and/or 6330, I.R.C., as of the date the petition herein was filed.” Order, at p. 3 (Emphasis by the Court).

And we all know that a subsequent SNOD or NOD cannot validate a previously-filed petition. The SNOD or NOD is the ticket to Tax Court. You can’t get in without a ticket.

So the Hardys are out.

But what if you get a late, but still timely, ticket, and send in an objection to the motion to dismiss with the ticket attached?

Ch J Iron Mike gets inventive, and his takeaway is well worth noting.

“However, in the interests of justice and to preserve an available remedy for petitioners, because the … notice of objection was mailed and received by the Court within the period during which a timely petition as to the notice of deficiency… could have been filed, the Court will direct that such document should be filed as a petition to commence a new case at Docket No. 25543-15S.” Order, at p. 3.

Even better, Ch J Iron Mike waives the filing fee.

Takeaway: Object. Object loudly. Object often.

But not able to mark-to-market, although William F. Poppe, 2015 T. C. Memo. 205, filed 10/19/15, is really a day trader, not an investor. Still, Judge Laro is sympathetic, though he disallows Poppe’s ordinary loss treatment and hits him with late filing chops.

Poppe is a school teacher, but his real job is day trading. Between classes and summers he racks up better than 700 trades during the years at issue, and most of his income comes from the swings and roundabouts.

But he files his return electing Section 475 treatment two years late, and never puts in the Form 3115 wherein he claims he elected the Section 475 largesse.

Judge Laro insists upon strict rules of golf. “This Court has on several occasions held that a securities trader failed to make an election under section 475(f) where the trader did not follow the election requirements of Rev. Proc. 99-17….

“We find that petitioner failed to comply with the requirements for the mark- to-market election set out in Rev. Proc. 99-17, supra. The evidence does not show conclusively whether petitioner signed or mailed a Form 3115 in 2003. Petitioner did not submit a copy of any executed version of Form 3115 or any evidence of mailing it. Respondent did not find any record of petitioner’s Form 3115 in his electronic database, but also admitted that in some years not all Forms 3115 received were actually entered in the database. Next, petitioner filed his Federal income tax return for 2003 on July 25, 2005, failing to comply with the filing deadlines. The 2003 tax return contained a statement that petitioner made an election pursuant to section 475(f), but did not have a Form 3115 attached to it. Thus, petitioner did not comply with the requirements of Rev. Proc. 99-17, supra.

“Petitioner argues we should find that he made a valid section 475(f) election under the substantial compliance doctrine. The substantial compliance doctrine has no place in determining whether a timely section 475 (f) election has been made. Rev. Proc. 99-17, supra, fixes a deadline by which the election must be made and the requirements for the election. Because petitioner failed to comply with the requirements of Rev. Proc. 99-17, he did not make an effective mark-to-market election in 2003.” 2015 T. C. Memo. 202, at pp. 16-17. (Citations and footnotes omitted).

Mark-to-market means the trader can take profits and losses on securities held at each calendar year’s end as if said securities were sold for their FMV, even if the securities in question never left the trader’s account. No wonder IRS insists upon strict rules of golf.

Poppe is out on ordinary gains and losses, and only has whatever capital gains and losses, short or long, actually realized, and gains offset losses. Any excess loss gets the $3K limitation.

But Poppe claims he has or had Asperger’s syndrome, so he couldn’t file timely, and brings in his trusty psychologist so to testify.

“Petitioner alleges that his mental impairment–an ASD previously known as Asperger’s Syndrome–constitutes reasonable cause for purposes of section 6651(a)(1) and (2). Petitioner offered testimony of a fact witness, L. G., Ph.D., to confirm his diagnosis. Mrs. G. [no, Judge, Doctor G.] is a licensed psychologist in the State of New York but is not a medical doctor. Mrs. G. has been petitioner’s psychologist since June 2013 and has been seeing petitioner approximately once a month. Mrs. G. testified that the condition petitioner suffered from was a chronic, pervasive, lifelong neurological disorder that manifests itself in impairment of some executive functions, poor social cognition, and high dependence on routines. Mrs. G. also opined that petitioner did not fully appreciate the seriousness of his failure to file his tax returns. We note that Mrs. G. was not petitioner’s treating healthcare provider in 2003 or 2007, the years at issue, and is not a medical doctor. For these reasons, we give her testimony minimal weight.” 2015 T. C. Memo. 202, at pp. 22-23. (Name omitted).

This being a nonpolitical blog, I will not comment on “Mrs.” as opposed to “Dr.,” nor the slighting reference to licensed psychologists in the State of New York. I am, however, thinking very loudly.

Anyway, during the years at issue Poppe was looking at six video screens, trading away, so despite Judge Laro’s sympathy, Poppe gets the chop.

Poppe did try the “financially disabled” gambit, Section 6511(h), but that fails, as he’s not talking about a refund or credit for overpayment of taxes while disabled. If you want the dope on financially disabled, see my blogpost “Elected, Depressed and Disabled,” 11/12/14. And note Sarah Kurko was claiming a credit from one year to offset a liability for another year, not a late filing or late payment situation.

Apparently the USDCDAZ thought IRS could not vary Congress’ SOL for the Section 6707A chop, but IRS is taking an appeal. But this came up after Appeals bounced Laidlaw’s Harley Davidson Sales, Inc., Docket No. 14616-14L, filed 10/16/15.

So we have a designated hitter off the bat of that Obliging Jurist, Judge David Gustafson.

Apparently the biker fell foul of the Sterling Benefit Plan, a dodge more particularly bounded and described in my blogpost “Splitsville,” 7/14/15.

IRS hit biker with the chop at audit, and biker went to Appeals. Remember, the Section 6707A is non-assessable, so no SNOD necessary.

Biker claims SOL bars all but $10K of the $95K IRS wants. Biker also contests the liability.

Biker is out on liability. He had his chance at Appeals, put in evidence and participated.

Judge Gustafson: “It is true that petitioner’s first appearance before IRS Appeals was in a context that did not afford judicial review. However, with or without an opportunity for judicial review, ‘[a] conference with the Appeals Office provides a taxpayer a meaningful opportunity to dispute an underlying tax liability.’ Lewis v. Commissioner, 128 T.C. 48, 61 (2007). If petitioner contends that this regime violates the Constitution, then that contention fails: ‘It has long been established, moreover, that there is no constitutional requirement for a prepayment forum to adjudicate a dispute over the collection of a tax.’ Laing v. United States,423 U.S. 161, 210 (1976), citing Phillips v. Commissioner, 283 U.S. 589, 595-596 (1931). Petitioner is not foreclosed from hereafter litigating its liability in a refund claim context, either in Federal district court or in the Court of Federal Claims.” Order, at p. 4.

The magic words are, of course, “prepayment forum.” Pay first, sue later is the rule.

But in May v United States, CV-14-00910-PHX-NVW (D. Ariz., Jun 15, 2015), Judge Wake waved off the chop, claiming no extension of the SOL.

So Judge Gustafson sends biker back to Appeals, so that Appeals can consider the impact of the May decision. And also biker’s argument that Section 6707A(d)(2), which bars judicial review of IRS’ decision to rescind the penalty (or not), is unconstitutional.

Judge Gustafson: “Even if Appeals has discretion to rescind penalty or not rescind, it would seem that Appeals does not have discretion simply to ignore the rescinding request and to fail to rule on it. And even if we are barred from reviewing Appeals’ determination as to rescinding penalty (and even if that bar is constitutional), it would seem that in a CDP case we can review a wholesale failure to make any determination whatsoever as to rescinding penalty.” Order, at p. 5.

So IRS wins; biker had his chance to contest liability, and gets no second prepayment bite. But he goes back to Appeals on SOL and judicial review.

That’s been a good move for travelers, we’ve discovered, as we enjoy the end of our stay in Vienna and prepare for the trip to Munich.

And it’s also a good move for Jose Espaillat and Mirian Lizardo, 2015 T. C. Memo. 202, filed 10/15/15.

Jose got involved with Rocky Scrap Metal, Inc. (Rocky Scrap Metal), a scrap metal C corp owned and operated by brother Leoncio. Rocky was rocky, all right. Leoncio put Rocky into bankruptcy, taking with it $285K that Jose put into that business.

Jose had a landscaping business that did just fine, but when he tried to take the $285K as a capital loss, or maybe a worthless security (he was supposed to get stock but apparently he never did), or maybe a bad debt, to offset his landscaping income, IRS said “none of the above,” and Judge Buch agreed.

There’s much detail about how working for a corporation, or providing capital, doesn’t give rise to individual deductions.

Jose’s claim of partnership with the corporation doesn’t work, and his bad debt/worthless security gambit fails on timing. Jose can’t show whatever he had, be it stock or loan, became worthless in the year at issue. Just because a corporation is bankrupt doesn’t mean its stock is worthless. And Leoncio kept the place going after bankruptcy.

“On each of their joint Federal income tax returns…, Mr. Espaillat and Ms. Lizardo included a Schedule C for [landscaping] and also a second Schedule C. The [landscaping] Schedule C for [year at issue] reflects a successful landscaping and maintenance business…. The second Schedule C… relates to a business named ‘Jose Espaillat’, which is characterized as a ‘second hand metal dealer’ and for which Mr. Espaillat and Ms. Lizardo claimed a $359,000 loss deduction for 2008. The loss is reported as ‘Other expenses’ on line 27 of the Schedule C. All other lines on the ‘Jose Espaillat’ Schedule C are blank.” 2015 T. C. Memo. 202, at p. 3. This loss more than offset Jose’s landscaping gains.

Of course, it set off the alarm bells at the IRS. Why am I not surprised?

As aforedescribed, Jose’s deduction, however denominated, gets blown up. IRS even gets to conform pleadings to proof and disallow the $3K short-term capital loss it gave Jose when it thought he might have a bad debt claim.

My point? There is one, and it is the reason for the title of this sad tale.

IRS wants the 20% negligence chop. But Judge Buch will have none of that.

While Jose was good at gardening, he was no tax whiz.

“For the years in issue Mr. Espaillat and Ms. Lizardo enlisted Mr. Golomb, their C.P.A. of over a decade, to prepare their returns. Mr. Golomb had Mr. Espaillat and Ms. Lizardo each fill out a questionnaire before preparing their return for each year. He testified that Mr. Espaillat and Ms. Lizardo provided all the requisite information and were otherwise thorough in completing the questionnaires. Mr. Golomb credibly testified that he held a conversation discussing the facts of the situation with Mr. Espaillat and Ms. Lizardo about the different places to report their loss on the returns and that he thought a Schedule C was ‘the best place to put it.’

“While the facts at hand do not lend themselves to such a position, Mr. Espaillat and Ms. Lizardo have retained Mr. Golomb for at least 10 years without incident. Mr. Golomb is a C.P.A. with over 30 years of experience. Moreover, because Mr. Espaillat and Ms. Lizardo had always used a Schedule C in relation to [landscaping], they had every reason to believe that a Schedule C was the appropriate place to report their financial dealings with Rocky Scrap Metal. While Mr. Espaillat and Ms. Lizardo’s trust in Mr. Golomb was misplaced, they believed in good faith that he was accurately and correctly preparing their returns.” 2015 T. C. Memo. 202, at p. 28.

So stick to your Schedule. It might well save you money. Even if your Schedule isn’t the “right place to put it.”

What role does guilty knowledge play in a voidable (fraudulent) transaction? My colleague, Joel E. Miller, Esq., canvassed the issue extensively, and decided that the term “fraudulent conveyance” was a misnomer. The proper nomenclature is “voidable conveyance,” as it is the creditor(s) that is the injured party. The transferor may have guilty knowledge; the transferee may be pure as the driven cliché, but the creditor(s) may still avoid the transaction and grab the boodle.

Where the issue gets messy is where the transferee is really in cahoots with, or a stooge for, the transferor. This is the Billyhawk story. I’ve blogged the Billyhawk story extensively, but for some backstory, see my blogpost “Game Ends In No Score,” 5/30/12.

Well, today Judge Lauber, besieged by eight (count ‘em, eight) lawyers, three for the taxpayer and five for IRS, is dealing with Michael A. Tricarichi, Transferee, 2015 T. C. Memo. 201, filed 10/14/15. Plenty of knowledge here.

Mike was a cellphone starter-upper who formed a C Corp because he expected more shareholders than S Corpery would allow, except he was a solo and won a big antitrust lawsuit against Big Telecom. This means double taxation, and a major hit to Mike’s takeaway from the Big Telecomers.

So his trusty lawyers get our old chums MidCoast to gin up one of their MidCo deals, with the usual Dutch lender who is fully cash-collateralized on Day One, and a Cayman Islands phony thrown in. Trusty lawyers get reps and warranties, but of course none of these is honored, either in the breach or the observance.

And Mike asks PwC for an opinion, doctoring their retainer letter, which doesn’t go over either with PwC or Judge Lauber.

Mike’s a Buckeye, so Judge Lauber hits the Ohio Uniform Fraudulent Transfer Act. Remember, all Section 6901 does is give IRS an accelerated shot at collecting if State law would treat IRS as any creditor of the transferor.

There is an actual fraud provision in Ohio State law, plus three constructive fraud provisions, and IRS claims Mike hit the whole cycle.

Mike claims there was no transfer from his C Corp, as the cash involved came from the Dutch loan. But the “loan” was an in-and-out in one day, and was fully collateralized. In any case, the fee the Dutch got was way more than interest, and was a fee for facilitating the deal.

The loan was a sham.

And Mike had plenty of guilty knowledge. “Finding that a person had constructive knowledge does not require that he have actual knowledge of the plan’s minute details. It is sufficient if, under the totality of the surrounding circumstances, he ‘should have known’ about the tax-avoidance scheme.” 2015 T. C. Memo. 201, at p. 47 (Citation omitted).

And ordinary diligence plays a role in constructive knowledge. You can’t turn a blind eye to something that looks fishy. Striking the sentence in the PwC retainer that would have required Mike to state he wasn’t engaging in a listed transaction before he sent the signed retainer back to PwC shows Mike knew he wasn’t on the up-and-up.

And the shill insisted Mike strip his C Corp of every asset but cash before doing the shenanigans. “Petitioner was a sophisticated entrepreneur who had built a company and knew how to value a business. It should have provoked tremendous skepticism to discover that [the shill] was willing to pay a 47% premium to acquire cash, which by definition cannot be worth more than its face value.” 2015 T. C. Memo. 201, at pp. 50-51.

Judge Lauber comes down on the duty to inquire.

Now the shill stayed in business for some years, filing tax returns and keeping a nominal cash balance in the bank. So it wasn’t a classic bust-out, where the shill collapses immediately after doing the deal.

Judge Lauber isn’t impressed.

“At the insistence of petitioner’s lawyers, [shill] was kept in formal existence for several years. It filed tax returns; it cut checks to [MidCoast] affiliates; and it maintained a nominal cash balance. But keeping [shill] in notional existence was simply a charade designed to create a defense to the precise argument the IRS is advancing here, an argument that petitioner and his attorneys knew the IRS would advance if this Midco transaction came to its attention. Such lawyerly stratagems cannot hide the fact that [shill] had been liquidated in substance. It continued as a Potemkin village intended to deceive the IRS, just as the original was designed to fool Catherine the Great.” 2015 T. C. Memo. 201, at p. 55.

I love “lawyerly stratagems,” but only if they work. These didn’t.

No, not Nat Hawthorne’s 1850 New England morality play. Today, Judge Laro has more bad news for Bradley C. Reifler and Nancy Reifler, 2015 T. C. Memo. 199, filed 10/13/15.

The facts are a replay of 2013 T. C. Memo. 258, filed 11/13/13. I didn’t blog that case then, and I can’t claim clairvoyance that it would resurface today. Judge Halpern bounced Brad’s and Nan’s SOL defense on equitable estoppel grounds.

Brad and Nan cave on the deficiencies they tried to erase back in 2013, but want to fight the late-filing chop on grounds of substantial compliance and tacit consent. Judge Halpern only mentioned them then, so that’s dicta, but Judge Laro isn’t buying either.

As regards substantial compliance, Nan never signed the original joint return their trusty accountant prepared. Brad did, didn’t date the return and mailed it in.

IRS bounced the return with a large red “S” on page two, hence the title of the blogpost. Now the bounced return was supposed to be accompanied by other documentation, which Brad and Nan don’t remember getting. Howbeit, Brad never mentioned the bounce to the trusty accountant, but years later whited out the scarlet letter, copied the page, had Nan sign, and sent it in.

Brad and Nan claim the first iteration of the return was substantial compliance. No, says Judge Laro, signing under penalty of perjury is an essential element of an honest attempt to comply with law, the basis of all substantial compliance. The only exceptions are sick or disabled spouse, or properly filed POA.

“Tax law is complex and confusing to most of us. Sometimes it is appropriate for the courts to clarify the subtleties of statutory and regulatory provisions. The requirement of a signature on a tax return, however, is not one of those issues. It would be inappropriate for this Court to use its power to create a potentially unlimited exception to a well-established and fairly simple rule. “ 2015 T. C. Memo. 199, at p. 17.

Ya gotta sign it for it to be a return. And joint means both spouses. Judge Laro has a bushelbasketful of cases saying so.

As for tacit consent, that’s only where joint and several liability is at issue, and here it isn’t.

Whether a spouse who didn’t sign a return nevertheless consented to it raises too many questions.

“Petitioners’ argument that it is the intent of the spouses that counts when it comes to filing tax returns is somewhat tempting in that it would allow us to resolve the case before us easily. However, as discussed above, a signature under penalty of perjury has additional significance when it comes to determining the issue of liability for any unpaid taxes or related penalties. It would be unfair to expose a nonsigning spouse who never intended to sign a joint tax return to the burdens of litigation that could span many years when that spouse did not in fact attest to the veracity of the statements on the tax return. We believe the intent to file a joint return is different from signing a document under penalty of perjury, and the two do not supplement or replace each other. Using the tacit consent doctrine in cases when a tax return is rejected by the Commissioner for lack of compliance with the most basic requirements would only create chaos.” 2015 T. C. Memo. 199, at p. 26.

IRS claims administrative regularity as regards mailing the explanatory documents with the bounced return, but Judge Laro needn’t go there. Brad is a sophisticated businessperson who never had a return bounced before, and who has always consulted his trusty accountant on tax matters. Here he did nothing, and his trial testimony was vague and unconvincing.

But the ultimate fact is he whited out The Scarlet Letter before submitting the return late.

For the backstory on this title, see my blogpost “A Klug Zu Columbus’n,” 10/13/14.

But here, as I’m sitting in the lobby of the Hotel Beethoven in Vienna, trying to get Sir Andrew acclimatized to the Austrian Internet while listening to selections from Fidelio (a blessed relief from the nonstop elevator music in Germany and the Czech Republic), I forgot that Tax Court is off for the Columbus Day (or Indigenous Peoples’ Day) holiday.

Wherefore, there will be no discussion today of the foibles of taxpayers and the IRS. Just a reminder that Tax Court is recruiting for a Clerk of the Court and for some STJs. So if you’re off for the holiday and looking for something to do, head for the Tax Court homepage (ustaxcourt.gov) and fire off your resume. But remember: “Exceptionally well-qualified persons will be considered for these positions.” The rest of us duffers need not apply.

No, not a religious discussion; this blog deals with taxes, and that’s a sufficient source of argument and dissension.

Today’s story is about a corporation who (not which; remember, corporations are people) loses its powers but revives them.

It takes place in LaLa Land, and who better to tell the tale than The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a the Irrefragable, Indefatigable, Illustrious, Imperturbable and Implacable Foe of the Partitive Genitive, Judge Mark V. Holmes?

Here’s Kerio Solutions, Inc., Docket No. 15966-14, filed 10/9/15.

Kerio got a SNOD, timely petitioned, and then CA revoked its privileges, whereupon IRS moved to dismiss.

But Kerio got itself reinstated as soon as it got IRS’ motion to dismiss.

I wish we could reinstate so fast in NY; our Sec’y of State seems to delight in playing put-and-take with Taxation & Finance over past franchise and corporate taxes, interest and penalties, so that the wannabe reviver feels like the ones addressed by a much more exalted personage thus: “Truly I tell you, you will not get out until you have paid the last penny.”

Howbeit, here’s Judge Holmes: “We’ve previously dismissed a case where the suspended California corporation couldn’t continue to litigate. Nt, Inc. v. Commissioner, 126 T.C. 191 (2006). When we dismissed Nt, Inc.’s case, however, it was still suspended. Id. Kerio in contrast moved quickly to get itself unsuspended once the Commissioner moved to dismiss its case. Because Kerio has been reinstated by the Board and the respondent makes no other arguments for dismissal, we hold that Kerio can continue to prosecute this case.” Order, at p. 2.

Judge Holmes didn’t pick up on John Hom’s predicament; see my blogpost “Being and Nothingness,” 5/7/13.

John got revived on the eve of trial, but Judge Cohen dumped him because his defunct corporation wasn’t revived when he petitioned.

Takeaway– Check your State’s corporation laws, and get revived if you need to. Before you petition.

The BeeGees described their thus-entitled 1977 hit (number 189 on Rolling Stone’s top 500) as “a victory just to survive. But when you climb back on top and win bigger than ever before, well that’s something everybody reacts to everybody.”

Well, that’s Kenneth William Kasper’s song. Ya gotta remember Kenneth William for sure. What, you don’t? Get with the program, as we used to say many years ago.

And to help you out therewith, check out my blogposts “IRS Loses a Double Header,” 7/12/11, and “Cain’t Say No,” 8/19/14.

Now that y’all are up to speed, Kenneth William is battling on, and IRS is tied in knots, going for summary J and losing in Kenneth William Kasper, Docket No. 6748-13W, filed 10/8/15, The Judge With a Heart, STJ Armen, doing the tying.

IRS moves for summary J, as aforesaid.

“Respondent’s [IRS’] motion includes numbered paragraphs making various factual assertions. These paragraphs include references to various documents identified as exhibits and attached to respondent’s motion. However, the factual assertions in the numbered paragraphs of respondent’s motion are not supported by a declaration of the type described in Rule 121(d), Tax Court Rules of Practice and Procedure. Statements in briefs do not constitute evidence. See Rule 143(c), Tax Court Rules of Practice and Procedure. Similarly, the exhibits attached to respondent’s motion have not been properly authenticated as required by Rule 901 of the Federal Rules of Evidence. In addition, those exhibits would appear to be hearsay under Rule 801, Federal Rules of Evidence, and respondent has failed to show that they qualify as an exception under Rule 803(6) or (8), Federal Rules of Evidence, or any other exception. Therefore, neither the factual assertions in the numbered paragraphs nor the attached exhibits are admissible evidence, and they cannot be relied on by this Court in considering respondent’s motion. It follows that respondent’s motion is not ‘supported’ as required by Rule 121(d), Tax Court Rules of Practice and Procedure.” Order, at pp. 1-2.

It looks like a bad day for the 1111 Constitution Ave NW gang. And it doesn’t get better.

“Even if the Court were to consider respondent’s documents identified as exhibits, the Court would nevertheless deny respondent’s motion. Drawing factual inferences against respondent as the moving party, the Court concludes that there are material issues of fact in dispute. In particular, with respect to what respondent’s documents refer to as claim numbers 20013-003164 [sic], 2013-003165, 2013-003176, 2013-003196, 2013-003197, and 2013-003198, questions remain as to whether respondent undertook an administrative examination of the taxpayers, whether such examination was initiated on the basis of or aided by the information provided by petitioner, and whether any proceeds were collected as a result of the examination. See I.R.C. sec. 7623(b). Further, the attachment to the Form 11369, Confidential Evaluation Report On Claim For Award, is irrelevant. It references claim number 2013-003163; however, no determination appears to have been issued with respect to that claim. As follows from the foregoing, summary adjudication is not appropriate.” Order, at p. 2.

Throwing paper at STJ Armen doesn’t work unless the paper is authenticated and says something to the point.

Motion denied, with prejudice. For you civilians, that means IRS can’t try summary J again.

They have to try the case. That means the Ogden Sunseteers gotta dish, and dish good.

Pro se Kenneth William gets a Taishoff “well done, first class.”