Attorney-at-Law

GIVE CREDIT WHERE CREDIT IS DUE

In Uncategorized on 12/12/2016 at 16:22

But To Whom Is It Due?

STJ Panuthos, again modestly omitting his Chiefdom, has to deal with giving credit. No, Tax Court is not Lending Tree. Jennifer Zuch, 25125-14L, filed 12/12/16, claims the two checks aggregating $50K she and her now-ex-spouse Patrick Gennardo paid to IRS as 1040-ES payments are hers. One was drawn on their joint account and that 1040-ES listed both of them. The other named only Pat, although the cash came from Jen.

IRS put both checks in their joint account, but each filed MFS for that year, as they parted ways. Jennifer claims she was so broken up by Pat’s bailout she filed late.

After not mentioning the $50K in either return, Jen and Pat filed 1040Xs, giving Jen the $50K credit.

Then Pat offers an OIC for that year and some unspecified other years, IRS takes him up on it, and applies the $50K to Pat’s OIC. Then IRS hits Jen with a NITL.

Now STJ Panuthos again conflates paper with person. Enter “petitioner’s POA Frank Agostino,” who files the 12153 for Jen. Petitioner’s “POA” is no paper tiger. He’s the Boss Hoss of the well-known law firm sometimes herein and elsewhere referred to as The Jersey Boys.

Judges, Chiefs or not, must remember a Form 2848 qualifies a “representative” to act for taxpayers before IRS. The Form 2848 is entitled “Power of Attorney and Declaration of Representative.” It names the representative, and most commonly does so on a piece of paper.

Back to our game. Appeals says “So sorry, applied the money to Pat’s OIC, and BTW, we’re not abating the late-filing chop despite your tearful bust-up with Pat.”

Jen petitions, and IRS, after answering, seeks summary J.

Not today, says STJ Panuthos.

Since check no. 1 was accompanied by 1040-ES with both names and both SSANs, it’s a joint payment, so how come Pat got it all?

The second check had no 1040-ES with it, and the cover letter to an IRS employee named both Jen and Pat. “It is also not clear from the record as to when petitioner and Mr. Gennardo decided to file their…Form 1040s separately.” Order, at p. 6.

And as for the OIC that covers both the year at issue “and other years,” were any payments subsumed in the OIC for joint liabilities of Jen and Pat?

As for standard of review, STJ Panuthos has a footnote worth reading: “See Freije v. Commissioner, 125 T.C. 14, 23, 26-27 (2005) (applying abuse of discretion standard where taxpayer in CDP case challenged IRS’ failure to credit overpayments). Compare Landry v. Commissioner, 116 T.C. 60, 62 (2001) (applying de novo standard where taxpayer challenged application of overpayment credits, reasoning that “the validity of the underlying tax liability, i.e., the amount unpaid after application of credits to which petitioner is entitled, [was] properly at issue”), with Kovacevich v. Commissioner, T.C. Memo. 2009-160, 98 T.C.M. (CCH) 1, 4 & n.10 (applying abuse of discretion standard where taxpayer challenged application of tax payments, reasoning that ‘questions about whether a particular check was properly credited to a particular taxpayer’s account for a particular tax year are not challenges to his underlying tax liability’), and Orian v. Commissioner, T.C. Memo. 2010-234, 100 T.C.M. (CCH) 356, 359 (same).” Order, at p. 6, footnote 7.

No need to decide now which standard to use; too many questions.

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