Attorney-at-Law

DELEGATI NON POSTEST DELEGARE

In Uncategorized on 05/09/2016 at 15:22

No, not the Italian entry in the Eurovision Song Contest. This is Eighth Circuit’s vindication of rounder Leroy Muncy, Docket No. 27807-11, filed 5/9/16.

Leroy was an old-time tax protester. Judge Nega told his story, based on a record that Eighth Circuit found insufficiently developed, which I blogged under the name and style of “Restitution = Destitution,” 12/15/14.

So what for did the Sages of St. Louis find fault with Judge Nega’s examination of Leroy’s alleged delictions?

“The NOD was printed on letterhead from the “Department of Treasury, Internal Revenue Service, Small Business and Self-Employed,” and it was signed by JM, an Internal Revenue Service (IRS) “Technical Services Territory Manager,” who purported to issue the NOD on behalf of the Commissioner of Internal Revenue. Muncy argued to the tax court that the NOD had not been issued by a duly authorized delegate of the Secretary, that it was null and void, and that the tax court thus lacked jurisdiction.” Muncy v. CIR, No. 15-1626, filed 3/2/16, at p. 2. (Name omitted.)

Judge Mega thought that was no biggie, and nailed Leroy.

But the Sages of St. Louis thought otherwise. Firstly, CCA 8 reviews de novo.

Secondly, having done so, “Upon review, we conclude that the tax court erred by declining to address the legitimacy of the NOD. See 26 U.S.C. §§ 6212(a) (authorizing ‘the Secretary’ to issue NODs), 6213(a) (authorizing taxpayer to file suit in tax court for redetermination of noticed tax deficiency); see also 26 U.S.C. § 7701(a)(11) (‘the Secretary’ means Secretary of Treasury or his delegate), (12) (defining Secretary’s ‘delegate’); Bartman, 446 F.3d at 787 (discussing jurisdictional nature of NODs). We further conclude that the undeveloped record does not establish whether [JM] occupied a position that gave her authority–under the delegation order in effect at the time the NOD was issued, or under any other authorization–to issue Muncy the NOD.” Muncy v. CIR, No. 15-1626, filed 3/2/16. (Name omitted).

Note that what the Sages of St. Louis call a “NOD” I call a “SNOD,” that is, a Statutory Notice of Deficiency, to distinguish same from a “NOD,” or Notice of Determination from a CDP, innocent spousery, worker reclassification or the like.

So Judge Nega gets Leroy back, and IRS gets to show that JM was indeed the recipient of a proper delegation. Or not.

Takeaway—Note the delegation order dodge is a favorite among rounders and dodgers, and has routinely gotten blown off in Tax Court. This may be the first in a trend, so keep watching. And you Mid-Westerners can refurbish your petitions with some new language; everything may be up-to-date in Kansas City, but St. Louis isn’t far behind.

 

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