In Uncategorized on 01/08/2016 at 17:32

I was never a Boy Scout, so I cannot state of my own knowledge that the title of this blogpost is, or was at any time, the motto of that organization. I can state, however, that Professor Tom Lehrer wrote what was, long ago, a raunchy but humorous song by that name.

But STJ Armen, The Judge With a Heart, finds no humor in IRS’ motion for summary J in James J. Lewis, Docket No. 10742-15L, filed 1/8/16, a designated hitter. I presume STJ Armen designated this opinion so practitioners on both sides of the counsel table would read and heed.

I will not name IRS’ counsel here, as is my custom. Having the light of publicity shone upon one’s train wrecks is bad enough without a picture of the engineer.

STJ Armen: “…in the absence of a Form 4340 or an equivalent certified transcript of account, respondent has failed to demonstrate that there is any outstanding liability that would justify the issuance of a levy. But assuming that there is a liability, then in the absence of any transcript respondent has failed to demonstrate what that liability relates to. Thus, respondent’s reliance on I.R.C. section 6330(c)(2)(B) to preclude any challenge to the existence or amount of the underlying liability is not supported.” Order, at p. 1.

Remember the old first-year law school mantra. For summary judgment, marshal and lay bare your proofs.

It gets worse. “…petitioner expressed a desire for, inter alia, a collection alternative based on inability to pay. In support of such collection alternative petitioner submitted Form 433-A, Collection Information Statement. The Form 433-A was considered by a settlement officer to be sufficient to entitle petitioner to a face-to-face hearing rather than a correspondence hearing (and a face-to-face hearing was in fact conducted). Notably the Form 433-A, as completed and certified by petitioner under penalties of perjury, shows monthly living expenses in excess of monthly income. The settlement officer concluded, however, that ‘info shows taxpayer’s ability to meet necessary living expenses and make payment towards past due amount(s)’, yet the record reveals no reasoned analysis to support such conclusion.” Order, at pp. 1-2.

If a petitioner gets a face-to-face after putting in a facially compliant 433-A, it might be well for trial counsel to review the file a wee bit and possibly have a word with the SO about how she did the numbers. Maybe even editing or expanding the declaration by the SO, elaborating on her lucubrations might not have been amiss.

STJ Armen is as kind and gentle as can be, however. “Under these circumstances it cannot be said that respondent has demonstrated that no genuine issue or dispute as to material fact exists in this case and that a decision may be rendered as a matter of law.” Order, at p. 2.

But still he states that the motion is denied. Emphasis by the Court.

Lucky that James J. is pro se.


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