Attorney-at-Law

WITHOUT PREJUDICE?

In Uncategorized on 07/20/2016 at 16:25

You Sure, Judge Holmes?

See my blogpost “Without Prejudice = Extreme Prejudice,” 7/6/16.

Apparently, even though I have heretofore and oftentimes designated and styled him as The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Irrefragable, Ineluctable, Ineffable, Indefatigable, Illustrious and Incontrovertible Foe of the Partitive Genitive, and Old China Hand, Judge Mark V. Holmes does not read my blog.

Of course, he shouldn’t feel like The Lone Ranger. Some billions of people don’t read it either.

However, in the case of Hassel Family Chiropractic, DC, PC, Docket No. 21065-10L, filed 7/20/16, a day with neither opinion or designated hitter, Judge Holmes has left me perplexed.

Back on 6/3/16, Judge Holmes dismissed the Hassel Family’s case without prejudice, relying on our old pal Wagner.

I need not remind my readers that, unlike a case arising from a petition from a SNOD, a case arising from a petition from a NOD can be dismissed without entry of decision in favor of IRS for their entire demand.

It’s the “without prejudice” part that causes trouble.

The case was on for trial in Des Moines IA back in 2011. If in fact there was jurisdiction based on a timely petition at that time, and if the one-hearing-per-tax-year rules of Section 6330(c)(4)(A) apply, then any new petition from the Hassel Family must be time-barred, no?

Unless the Hassel Family can invoke the supplemental-hearing rule. But there’s no remand back to Appeals here that I can find, much less a supplementary NOD.

More puzzling is this language from the order: “On June 3, 2016 the Court granted the petitioner’s motion to dismiss the case, however that did not close the case.”

Why not? Isn’t a Wagner dismissal “game over”?

And if that dismissal didn’t close the case, how was it still alive?

And if it is, does the “motion to withdraw the petition” (presumably six years after it was filed) now “close the case”?

And even if it does, the NOD must now be at least six years old, and the time to petition a NOD is thirty (count ‘em, thirty) days after issuance. So how can the case be closed “without prejudice”?

Maybe the Hassel Family can pay, file for refund and sue in USDC or USCFC. But the order isn’t that explicit.

I’m confused.

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