Trudging through Tax Court orders seeking the odd gem to blog is wearisome, but sometimes one feels a wave of pity for those entrapped by the IRC and the Tax Court’s Rules.

Here’s that horsey litigant (and winner) Denise Celeste McMillan, Docket No. 3720-12, filed 11/3/15. You’ll remember Denise won back in June. You don’t? Then re-read my blogpost “Who Would These Burdens Bear,” 6/12/15.

So Prevailing (or Prevalent?) Denise wants her legals and admins per Section 7430.

She doesn’t get them, and Judge Halpern is here to tell you why.

“Rule 231(a)(2)(A), Tax Court Rules of Practice and Procedure, provides that a taxpayer claiming litigation and administrative costs, where no agreement as to taxpayer’s entitlement to such costs exists, must file a motion with the United States Tax Court within 30 days after the service of a written opinion determining the issues in the case. T.C. Rule 231(a)(2)(A). Petitioner filed the motion more than 30 days from the date the written opinion was issued in this case. We issued our memorandum opinion in this case on June 11, 2015. Petitioner had until July 11, 2015, to file her motion. Petitioner filed the motion on September 25, 2015, which is 106 days from when we issued our memorandum opinion. Accordingly, the motion is not timely. Petitioner’s citation to 28 U.S.C. section 2412(d)(1)(B) is inapposite, in that 28 U.S.C. section 2412(e) expressly excludes from its coverage ‘any costs, fees, and other expenses in connection with any proceeding to which section 7430 of the Internal Revenue Code of 1986 applies’.” Order, at pp. 1-2.

And here’s an even sadder tale, Wayne Robert Wilson, 22626-14SL, filed 11/3/15. The Judge With a Heart, STJ Armen, tried to help Wayne Robert, who is in dire straits, but the Judge’s helping hand didn’t satisfy Wayne Robert.

Back in August, STJ Armen remanded Wayne Robert back to Appeals. Appeals gave Wayne Robert a CNC NOD. Wayne Robert is not thrilled, however, even though IRS’s hand is stayed. He writes to STJ Armen.

“Judging from petitioner’s letter…, it is hard to know whether petitioner regards currently-not-collectible (CNC) status satisfactory. Clearly the import of the petition and other filings by petitioner is that he is in dire financial straits and is unable to pay his assessed liabilities for the years in issue. One might therefore think that he would be pleased to know that levy action is suspended while his account is in CNC status and that he ‘would not be required to make periodic payments, other than refund offsets from Federal and State Tax Returns, while the account is classed as such.’ After all, petitioner implies that he would pay his liabilities if his financial situation were to change dramatically for the better. In any event, petitioner’s concern that CNC status ‘does not resolve anything, plus it adds a lien against me’ would appear to be inaccurate in that the instant case involves a proposed levy and, as far as the record reveals, no notice of Federal tax lien has been filed to date. Further, petitioner’s hope for tax relief in the form of income averaging is unavailing in view of the fact that income averaging was repealed from the Internal Revenue Code many years ago and, in any event, was designed to ameliorate rapidly increasing income and not the converse (which seems to have been petitioner’s situation).” Order, at pp. 1-2.

I lamented the end of income averaging, as for many years before and after my income varied widely from year to year. But income averaging died with advent of the celebrated Internal Revenue Code of 1986.

So STJ Armen has no further means of facilitating a “quick and simpler path to resolution” of Wayne Robert’s problem. Back to the trial docket goes Wayne Robert.