Attorney-at-Law

THE PRISONER’S FRIEND

In Uncategorized on 08/18/2016 at 16:30

There are a couple these on the Tax Court bench, one of whom is The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Irrefragable, Incontestable, Incontrovertible, Ineluctable, Indefatigable and Imperturbable Foe of the Partitive Genitive, and Old China Hand, Judge Mark V. Holmes.

In UK courts-martial, the “prisoner’s friend” is the defending officer. Here, it’s Judge Holmes trying to help Eugenio Espinoza Martinez, Docket No. 29472-12, filed 8/18/16.

Remember Eugenio? I almost forgot him as well, until I scoped out my blogpost “Hitting the Superfecta – Part Deux,” 3/16/16.

Facts are same as before. Eugenio still guest of TX, he’s not going anywhere soon, and he hasn’t got any documents for his Sched C and Sched A deductions.

IRS wants summary J, but there are fact questions.

“Prisoners routinely exercise their right to petition Tax Court to challenge notices of deficiency. And, despite the undoubted problems of conducting litigation from behind bars, we do try to develop and resolve cases instead of continuing them until the end of an inmate’s sentence — which of course may never come. See, e.g., Rader v. Commissioner, Docket No. 7952-12S (serial killer serving 10 consecutive life sentences); “BTK Sentenced to 10 Life Terms,” CNN (Aug. 18, 2005), http://www.cnn.com/2005/LAW/08/l8/btk.killings/.” Order, at p. 2 (Footnote omitted).

Because moving State prisoners to Federal Court is expensive, and the deficiency here is $5K, Judge Holmes wants IRS and Eugenio to do a Branerton stipulation and agree as far as they can. Eugenio complains about his hard life behind Texas bars, so IRS’ facts are deemed.

It takes Eugenio a couple years (we’re in Judge Holmes’ courtroom), but finally “(H)e filed a supplemental response that did go through the respondent’s motion point by point. He also stressed again he had pleaded and argued that he had not even filed a return for [second year at issue].” Order, at p. 7 (misnumbered as page 2).

Income is no contest. Eugenio doesn’t deny he received what IRS claims in either of the years at issue. So summary J to IRS on that point.

As to the deductions for the first year at issue, IRS moved Eugenio’s Sched C items to Sched A, but that doesn’t change the numbers. However, Eugenio claims under penalty of perjury he had unreimbursed employee expenses. That’s a fact question, so no summary J to IRS.

As to Eugenio’s Sched A deductions and the dependent exemption for the second year at issue, “He completely disavows the return that the IRS received as having been prepared and filed without his consent. He does not contest in pleadings or on this motion the income reported by his employer, but he does, in the end, contest the disallowance of the reported Schedule A deductions. And on the issue of his entitlement to a dependency exemption for his aged mother for the [second year at issue]. The Commissioner points to Mr. Martinez’s letter to the Commissioner where he stated that ‘I cannot support my contentions that I am entitled to these deductions.’ We agree that this is an admission that Mr. Martinez cannot support his claim; his response to the summary-judgment motion raises no genuine dispute to the contrary. If Mr. Martinez is to be believed, and on a motion for summary judgment we have to assume he would be, he filed no return for that year. But if he filed no return, it means that he himself did not claim any exemption for his mother or any Schedule A deductions. Even though he says that his mother was a dependent that year, he concluded that ‘whomever made such decision to include her as a dependent was done in the process of fraud.’ Respondent prevails on both these issues as well.” Order, at p. 8.

So IRS can talk to Eugenio about the first year at issue (I’m sure they know where to find him), try once more to stip their way out, but if they can’t, let IRS tell Judge Holmes whether they want to keep fighting, and how to do so.

This case affords the practitioner who represents the incarcerated a good checklist for doing so. Read all the orders.

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  1. […] Taishoff, THE PRISONER’S FRIEND. “This case affords the practitioner who represents the incarcerated a good checklist for […]

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