In Uncategorized on 02/04/2016 at 15:56

Judge David Gustafson shows off another facet of his obliging nature, and even sets it up as a designated hitter (making life easier for the hard-working blogger). It’s Cornelius L. Jones, Docket No. 5166-15L, filed 2/4/16.

This is the usual IRS summary J motion off a CDP. Con claims his household expenses should be based upon two people, although his wife has her own bank account and maybe pays some expenses. But he pays all living expenses.

The SO’s case record says “SO went over form 433-A with poa [power of attorney] and asked tp [taxpayer] what relationship is the person that listed on from [sic] 433-A to the taxpayer. POA indicated she is tps spouse; she is disabled and has her own bank account and pays her own expenses; medical expenses. She doesn’t receive much and indicated tp pays all the household monthly living expenses. And expenses listed on form 433-A page 4.” Order, at pp. 2-3.

Leaving aside my standard nomenclatorial quibble, that a Power of Attorney is a piece of paper, and the party designated in that paper to act for the Principal is the Agent, the SO bounces Con’s installment proposal, treating him as single, and Con petitions the resulting NOD.

IRS wants summary J; standard procedure, and I’d try it if I were IRS’ counsel. I’ve said so in previous blogposts.

No go, this time. Judge Gustafson will tell us why.

“Now before us is a motion for summary judgment under Rule 121, as to which our responsibility is not to find facts but rather to determine the presence or absence of a dispute of material fact. As the non-movant, the obligation of petitioner here is only to make an evidentiary showing that raises such a dispute, not necessarily to show evidence that would win that dispute. If he successfully raises a genuine dispute of material fact, then he is entitled to a trial, and the motion for summary judgment would be denied.” Order, at p. 3.

Issue finding, not issue determination, as the textbooks say.

But wait, there’s more, as the midnight telehucksters say.

“While in ruling on a summary judgment motion we indeed determine only the presence or absence of a dispute of material fact, we do so here in a context in which the question is not whether Appeals erred in determining petitioner’s ability to make a monthly payment but instead whether Appeals abused its discretion in so determining…, and we make that ruling only by reference to issues that petitioner raised before Appeals in the CDP hearing….” Order, at p. 4. (Citations omitted)(Emphasis by the Court).

But Con really raised a question about what spouse pays and what Con pays, and whether in fact Con is on his own. And that’s enough to defeat summary J.

Go to trial, IRS.




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