Attorney-at-Law

A BLOWN DISMISSAL?

In Uncategorized on 11/29/2016 at 16:18

As Old Pliny remarked, on which Karen Dinesen picked up, both in a different context “ex Africa semper aliquid novi.” But today it’s “Out of Tax Court always something new.”

Judge Lauber wants enlightenment, and so do I.

We all know that Section 7459 mandates that dismissal of a petition from a SNOD, otherwise than for want of jurisdiction (e.g., mailed to wrong address, invalid SNOD), mandates entry of decision for IRS in full amount stated in SNOD. We also know that, per Wagner, dismissal of a petition from a NOD does not mandate such an entry.  The petition is dismissed and life goes on (ob-la-di, ob-la-da being an optional extra).

But what happens with a motion to dismiss petition from a NOD pursuant to the provisions of Section 7623?

Perhaps we’ll get the answer from Elizabeth M. Jacobson, Docket No. 20577-15W, filed 11/29/16.

Ms J moves to dismiss her petition, and IRS shoots in a quick nihil obstat.

Today is Latin day on this blog, guys.

Well, Judge Lauber may be looking for guidance, but he doesn’t ask Ms J’s counsel, he asks IRS’ Ladd to enlighten him.

“…respondent shall file…a response to petitioner’s Motion to Dismiss. The Court requests that respondent address in his response the propriety of extending, to the whistleblower context, the principles of Wagner v. Commissioner, 118 T.C. 330 (2002), a case that arose under the Court’s collection due process jurisdiction.” Order, at p. 1.

Seems a somewhat under-the-radar approach to what could be a simple procedural question.

Though Section 7623 vests Tax Court with jurisdiction, the blower has only thirty days from the issuance of the NOD to invoke same. Thus, in almost all cases, dismissal without prejudice is clearly off the table by the time the motion is made.

And as petitioner’s unopposed motion for dismissal in a CDP NOD is the end of the Tax Court road for petitioner (again because of the thirty-day outdate), what is the issue here?

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