Attorney-at-Law

ABUSE

In Uncategorized on 07/10/2017 at 16:27

Spousal abuse moved front-and-center in Rev. Proc. 2013-34, I.R.B. 2013-43, where such abuse might keep the abused from challenging the abuser’s dodging, thus enabling the abused’s plea Section 6015 innocent spousery .

But even serious abuse, when established, isn’t enough where the abused actually got free in time to participate meaningfully in the preparation of the return.

Today’s case is a Section 7430 legals and admins, that fails on IRS, like another tax collector in a much more exalted narrative, “going down justified.”

But I want to touch upon the abuse issue, as being of more general interest and application. 7430 justification is too often a case of 20-20 hindsight. And anyway, the point in today’s case on justification is that a concession, whether partial or complete, does not mean IRS wasn’t substantially justified at the time Appeals issued its NOD on the deficiency and the innocent spousery, and when IRS counsel filed the answer to the petition.

The case is Nina H. Kazazian, 2017 T. C. Memo. 135, filed 7/10/17 (Happy Palindrome Day, again).

Judge Lauber notes the spousal abuse, both in the statement of facts and in the opinion.

“Mr. Stackpool and petitioner both alleged spousal abuse in support of their requests for innocent spouse relief.  The AO noted that their short-lived marriage was tumultuous, with the police having been called to their residence on several occasions.  Indeed, Mr. Stackpool ultimately secured a judicial restraining order against petitioner, which she violated on at least one occasion, leading to her arrest and jailing.” 2017 T. C. Memo. at p. 5.

But this avails neither Mr Stackpool nor petitioner.

“In challenging the reasonableness of the AO’s determination petitioner relies heavily on her charge of spousal abuse.  Generally, abuse is a relevant factor where it ‘undermines the requesting spouse’s ability to reason independently and be able to do what is required under the tax laws.’   This may be true where the requesting spouse ‘was not able to challenge the treatment of any items on the return, or was not able to question the payment of any balance due reported on the return, for fear of the nonrequesting spouse’s retaliation.’

“The AO reasonably concluded that petitioner could not make this kind of showing.  Petitioner and Mr. Stackpool had permanently separated in August 2010, three months before the 2009 joint return was filed in November of that year.  She was directly and actively involved in the preparation of that return, as evidenced by her extensive communications with the [CPA preparer] firm.” 2017 T. C. Memo. 135, at pp. 12-13. (Citations omitted).

IRS did concede both the portion of the deficiency relating to Mr Stackpool’s taxes, and a big chunk of petitioner’s NOL and real estate pro portion of the deficiency. But the record is inconclusive as to the reason for the first, and the litigation risk reason for the second, which petitioner initially claims she had nothing to do with, turns out to be something she argued heavily at Appeals. And won in part.

As for the dollar amount of the claim, petitioner was pro se, even though a lawyer herself. No award without client-attorney relationship.

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