Attorney-at-Law

CLERK OR ADVISER?

In Uncategorized on 09/28/2016 at 21:12

It matters when a late-filing chop is asserted. We all know the Supremes refused to let the late filer off the hook because reliance on accountant, attorney or other preparer to file timely is no excuse. See my blogpost “Wait Just a Minute, Mr Postman – Part Deux,” 9/11/12.

But what about an adviser getting a date wrong? Or giving erroneous legal advice?

Third Circuit says that’s two different stories, and that’s enough to stymie IRS’ shot at summary J in MW 2 INC., Docket No. 8646-16SL, filed 9/28/16, a designated hitter by The Judge With a Heart, STJ Armen.

No question the 1120S was late. But MW 2 is Golsenized to Third Circuit, and Third Circuit reads the Supremes’ exegesis in US v Boyle, 469 US 241 (1985), to say strictly “my accountant mailed it late” doesn’t get it.

This is as contrasted with “my accountant told me Tuesday would be OK” or “you can always get another extension under 6081” (you can’t; see my blogpost “The Phone Call,” 4/15/14).

BTW, Second Circuit apparently agrees; see my blogpost first above cited.

In any case, here there’s a question whether MW2 relied on advice of expert as to filing date.

STJ Armen: “Among other things, questions exist in the instant case whether petitioner had reasonable cause for failing to file timely its income tax returns (Forms 1120S, U.S. Income Tax Return for an S Corporation), sp sec. 6699, and thus as to petitioner’s entitlement to abatement of applicable penalties. Drawing all factual inferences against respondent as the moving party in the motion for summary judgment, respondent has failed to establish that there are no genuine issues of material fact in dispute nor that he is entitled to judgment as a matter of law.” Order, at p. 3.

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  1. What about First Time Abatememt? Was that tried

    Like

  2. Order doesn’t state.

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