In Uncategorized on 09/09/2016 at 16:41

The first Friday after Labor Day appears to be a new Tax Court festival, as we have appearances by Alvin Sheldon Kanofsky (see my blogposts “Two Old Rounders,” 7/31/14, “Ten’ll Get Ya Twenty,” 2/26/15, and “Footnotes,” 6/10/16); Alfred Joe Izen, Jr., (see my blogposts “The $2000 Misunderstanding,” 6/12/12, and  “Try, Try Again,” 1/16/13);  and Carol Diane Gray (see my blogposts “Too Late But Still Timely,” 3/28/12, “Too Late and Not Timely,” 4/25/13, and “Fan Mail? – Not Exactly,” 6/27/14).

But here’s that Obliging Jurist, Judge David Gustafson, who watches, like Keats’s astronomer, new rounders swim into his (and my) ken.

Stand by for some “somber reasoning and copious citation of precedent” as Frances M. Scott and Galen L. Amerson, Docket No. 26717-14, filed 9/9/16, debut in a designated hitter.

Fran and Galen want a jury trial in Tax Court. Wrong, the US Constitution says only at common law, and suits against the sovereign, i.e., the U.S. of A., were barred at common law, and the Supremes so held in 1855. Nobody told you to sue in Tax Court, guys. If you want a jury trial, you can get a jury trial in USDC if you pay up, apply for a refund, don’t get it and sue timely.

Fran and Galen claim all judges have a conflict of interest, because the US pays them. Well, then, the Rule of Necessity says Judge Gustafson keeps the case.  Otherwise, both parties would have no place to try their case.

Next is the old Bill Benson number that Sixteenth Amendment wasn’t ratified.

Judge Gustafson: “Petitioners must have noticed that in the intervening 30 years, income tax returns have continued to be required and filed, and income taxes have continued to be paid by taxpayers, collected by the IRS, and enforced by the courts. In fact, litigation involving Mr. Benson himself has shown his theory to be without merit.” Order, at pp. 2-3.

Seventh Circuit bounced Bill’s criminal appeal, when he argued this one, back in 1991.

Fran and Galen aren’t done yet. They want their petition dismissed.

The problem with that, of course, is Section 7459(d) says OK, then you owe IRS whatever they demanded. Obliging Judge Gustafson isn’t that obliging. But he has some good advice for Fran and Galen.

“Petitioners are urged to forego the frivolous arguments advanced in their motion to dismiss and, instead, to prepare to litigate valid issues at the trial of this case.” Order, at p. 3.

Go try the case, guys.

Oh yes, don’t forget the Section 6673 $25K frivolity chop.

Judge Gustafson isn’t through for the day. He still has Rodney W. Gattie, Docket No. 7077-15, filed 9/9/16, which isn’t designated but still fits today’s bill. Rod did answer IRS’ Rule 91(f) motion, and Judge Gustafson lets Rod off the hook. “We use Rule 91(f) procedures not to adjudicate the reasonableness of the parties’ positions nor to prejudge their competing contentions, so we will discharge our order to show cause.” Order, at p. 1. Asked and answered, as I said in my blogpost of that name back on 12/24/13.

But Rod may be gameplaying. “However, we observe that Mr. Gattie seems to be contending that amounts he received as reported on Forms 1099 are not income to him because they were not received by him in connection with ‘the function of a public office’. His contention appears to rely on section 7701(a)(6) (providing that ‘[t]he term “trade or business” includes the performance of the functions of a public office’), and appears to assume that ‘includes’ means ‘includes only’–an assumption flatly contradicted by section 7701(c) (‘The terms “includes” and ”including” when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined’). This contention is frivolous. If Mr. Gattie makes such a contention at trial in this case, he should not expect to receive from the Court a lengthy opinion refuting it.” Order, at pp. 2-3.

Expressio unius exclusio alterius, as those of us who attended high-priced law schools say, is off the table here.

Rod, Judge Morrison warned you a year ago in an off-the-bencher not to try this stuff.


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