No, this has not become a religious blog. But the story of Wilfred Omoloh, 2017 T. C. Sum. Op. 64, filed 8/16/17 shows that being born again is not only a religious experience.

Here’s Wilf’s story, as told by CSTIJIW (Chief Special Trial Judge in Waiting) Lewis (“A Name Known to Fame”) Carluzzo.

“According to a birth certificate secured by petitioner apparently with much difficulty and issued more than 55 years after the event it records, petitioner was born on October 1, 1950.  According to various other records generated in response to information that he apparently provided, petitioner was born on October 1, 1952.  More often than not, people would like to be younger.  Here, at least as far as petitioner’s 2010 Federal income tax liability is concerned, it would be to his advantage to be as old as the above-referenced birth certificate shows him to be.

“This is so because after concessions, one of the issues that we must decide is whether certain distributions from qualified retirement accounts (IRAs) are subject to the section 72(t) additional tax.  If petitioner is as old as the birth certificate suggests, then he is not liable for the additional tax If he was born on a date shown in various other documents, then he was not yet 59-1/2 years old as of the dates of the distributions and he is liable for the section 72(t) tax as respondent determined.” 2017 T. C. Sum. Op. 64, at pp. 2-3. (Footnote omitted, but it says Wilf changed his birthdate after giving another birthdate at previous Tax Court proceedings.).

So the issue is the 10% addition, as the 20% underpayment chop is uncontested.

OK, Wilf has the burden of proof. And, as CSTJIW Lew notes, “According to Helen Hayes, ‘age is not important unless you’re a cheese.’ Maybe so, but petitioner’s age (and the age of his former spouse) as of the dates the distributions were made pretty much determines the issues remaining in dispute.” 2017 T. C. Sum. Op. 64, at p. 3.

Well, Wilf has that recently-issued Kenyan birth certificate showing the winning date.

But IRS is dubious (to put it politely), and CSTJIW Lew shares their doubt.

“Respondent agrees that petitioner’s recently acquired birth certificate is authentic but questions its accuracy.  We share respondent’s concerns with the accuracy of the information shown on the birth certificate, information petitioner apparently provided to the issuing Kenyan agency during the pendency of this case.  After consideration of all of the evidence regard petitioner’s age, we are reluctant to make any finding regarding the date of birth of petitioner or his former spouse. That being so, petitioner has failed to establish that respondent’s imposition of the additional tax in the notice is erroneous.” 2017 T. C. Sum. Op. 64, at p. 7. (Footnote omitted, but it says that there’s no evidence of the age of ex-Mrs. Wilf, who was on the MFJ return for the year at issue).

Besides, IRS has a full-page list of documents going back 35 years, on all of which Wilf gives his birthdate as 1952, not 1950.

So IRS and CSTJIW Lew ask the same question posed to a much more exalted personage: “How can someone be born when they are old?”

Please pardon the technical arcana in my headline, but I feel for Ch J L Paige (“Iron Fist”) Marvel, the Hardliner from the Old Line State.

See Melvyn Duane Salter, 21045-15L, filed 8/15/17. Mel was pro se (of course, else why this headline?) back last October. And lost an off-the-bencher per order dated 11/3/16. No, I didn’t blog it.

But whatever the story was back last November (which you can read for yourself here), this is not the way to begin your trial.

“Mr. Salter: In the event that I don’t agree with any decision that’s made today, will I have the right to appeal?

“THE COURT: You have the right to appeal that when I enter a decision.” Order, at p. 1.

And yes, there is a Notice of Appeal form on the Tax Court website.

Mr. Salter writes Ch J Iron Fist a letter, wherein he claims he couldn’t find it on the IRS website. He’s right, because IRS and Tax Court are two separate bodies.

Of course, he’s only six months late with his letter, but Ch J Iron Fist gives him the Khadija Duma treatment.

Remember Khadija? No? Well, check out my blogpost “Go For It,” 1/23/12.

Ch J Iron Fist decides to let 4th Cir sort out whether Mr Salter can appeal late.

“As a notice of appeal, his letter would appear to be untimely. Pursuant to I.R.C. section 7483, a notice of appeal would have been due to be filed in Mr. Salter’s case ‘within 90 days after the decision of the Tax Court is entered’-i.e., on February 1, 2017. See also Tax Court Rule 190(a). No notice of appeal was filed by that time. Rather, Mr. Salter’s letter was mailed 6 months later. However, it will be for the Court of Appeals to decide the timeliness of Mr. Salter’s appeal. We simply discern that the recent filing “clearly evinced an intent to appeal”….” Order, at p. 3.

4th Cir., it’s your party.

I’ve blogged before about pro se petitioners mistaking certain IRS billets doux for SNODs and wasting sixty bucks and a dash to the post office, only to find out the IRS was having them on.

See my blogposts “SCAR Tissue,” 4/14/17, and “Fake Out,”12/16/14, among others.

Here’s another example. Yolanda W. Bentley & Omar A. Jones, Docket No, 20337-16S, filed 8/15/17. Yo & O have numerous beeves with IRS over the SNOD.

They claim IRS didn’t follow the IRM. Tough table tennis, says STJ Armen, usually The Judge with a Heart. The IRM gives taxpayers no rights. Besides, “…upon review of the totality of the documentation in the record, the Court is satisfied that the irregularities in the certified mail list do not preclude a conclusion of proper mailing of the duplicate copies of the notice of deficiency.” Order, at p. 4. The USPS track-and-confirm site seems to seal the deal.

Yo & O claim neither they nor their representative got the SNOD.

Mox nix, it was mailed to last known address, and that suffices. Collection isn’t yet in play, so Yo & O can claim what they like at the CDP, when and if.

STJ Armen almost gets it right, but stumbles at the last fence; the Form 2848 doesn’t designate the representative as the power of attorney; the power of attorney designates the representative. It’s a piece of paper, Judge.

Yo & O claim the SNOD is defective because it misdesignates the form of return they filed, and that leads me to my point (yes, dear friends and followers, there is a point).

“The notice [SNOD] ‘is only to advise the person who is to pay the deficiency that the Commissioner means to assess him; anything that does this unequivocally is good enough…. [M]istakes in the notice which do not frustrate its purpose, are negligible.’ O’Rourke v. United States, 587 F.3d 537 (2nd Cir. 2009), quoting Olsen v. Helvering, 88 F.2d 650, 651 (2d Cir. 1937).” Order, at p. 3.

Therefore, anything from the IRS that says, “you owe so much tax for such a year” might be a SNOD. Must the word  ”assess” or “assessment” be found in the communication? Not according to STJ Armen, nor his colleague CSTJIW (Chief Special Trial Judge in Waiting) Lewis (“Glorious Spelling”) Carluzzo, as more particularly bounded and described in my blogpost “Fake Out,” above cited.

There, you’ll remember, even though the Letter 4314C says there was a SNOD when IRS claims there wasn’t, Oola Mar & Marlin got the heave-ho. And CSTJIW Lew didn’t bother to complain.

But I sure did. How does a taxpayer know what is a SNOD, and what isn’t? Without engaging an EA, USTCP or attorney? And how are we supposed to know?

IRS can solve this simply. Atop everything they want to assert is a SNOD, put these words in bold-faced capital letters: STATUTORY NOTICE OF DEFICIENCY: PETITION TAX COURT, NOT IRS, IN 90 DAYS FROM DATE BELOW. SEE www.ustaxcourt.gov NOW.

But until they do, consider petitioning everything.

But Don’t Get Grossed Out

That is, welcome to the club of US taxpayers. Judge Foley delivers the greeting to Losantiville Country Club, 2017 T. C. Memo. 158, filed 8/14/17.

The Losantis’ members pay dues, assessments, food minimums, all of which are tax-exempt income to the Club. But the Losantis also allow the unaffiliated to engage in tennis, golf, swimming, and wine-and-dine, for a surcharge. The Losantis account and report for the unaffiliated on the gross-to-gross method.

Judge Foley explains:  ”Pursuant to the gross-to-gross allocation method, petitioner used the ratio of nonmember sales to total sales to determine what portion of indirect expenses was attributable to nonmember sales.” 2017 T. C. Memo. 158, at p. 3.

The Losantis lost money on the unaffiliateds every one of the years at issue (three, count ‘em, three). But the Losantis had investment and dividend income.

This kind of income draws tax like a moth to a flame, so the Losanti’s accountants amend their 990-Ts for the three years to offset the interest and dividends against the unaffiliateds’ expenses.

Now my thoroughly-experienced and battle-hardened readers know that 501(c)(7) R&Rs can’t offset interest and dividends against anything but profitable unaffiliated expenses…in other words, there has to be at least an intent to profit from the unaffiliateds after deducting interest and dividends from the net unaffiliated cash after gross-to-grossing out the operating expenses. And gross-to-gross is not how to show it. The Losantis can’t.

So, unrelated business income, and that gets taxed. See Section 512.

The Losantis’ accountants admit they’ve heard of Portland Golf Club; and not because they have a reciprocal membership agreement, if they in fact do, but because the Supremes blew off the offset dodge back in 1990 in that case.

So the Losantis are grossed out.

OK, I suppose you’re waiting for the obvious pun. I won’t disappoint my fans. Instead of Portland Golf Club, Judge Foley should have invoked the Losanti clause, Except there’s no such thing as a Lo Santi Claus.

That whimsical jurist, Judge Robert A. Wherry, was severely rebuked for loquacity and lame humor by Judge Posner of 7th Cir. when dealing with John E. Rogers’ Brazilian wax jobs. See my blogpost “There Goes the Neighborhood,” 9/3/13.

Now, almost four (count ‘em, four) years later, poor whimsical Judge Wherry has to keep a straight face while blowing off Mrs. Susan Hartigan, as she attempts to scramble out of Mr. Rogers’ neighborhood.

Whimsical Judge Wherry helped out this hard-laboring blogger by designating this gem, after I sweated over a residential contract of sale, of the kind we call mishpocha work; this means family and friends. Heaven help you if you blow one of these, and double that if you try to bill your actual time at your actual rate.

Don’t get me wrong, I love these guys; I was at their wedding, which took place on the day before the venue was wiped out by Superstorm Sandy.

OK, so now Judge Posner will yell at me for my loquacity and lame attempts at humor. My spies tell me His Honor has been known to look at this my blog occasionally. Of course, my spies disseminate as much misinformation as anything else.

Anyway, Susan spent years claiming, individually and through her husband Mr. Mike Hartigan the tax lawyer, that she was a partner in Leila Verde Fund, LLC, which held a 98% interest in Derringer Trading, LLC, Jetstream Business Limited, Tax Matters Partner, et al, Docket No. 20872-07, filed 8/11/17*. Yep, this doozy has been running for ten years and not even breathing hard.

As recently as 2013, Susan filed an election to participate in the TEFRA FPAA, claiming to be a partner in Leila Verde, and designated husband Mike the tax lawyer to represent her.

Of course, way back in 2003 and 2004, Susan took a grand total of $3.3 million in ordinary loss write-offs from the DADS deals that John E. Rogers, Esq., concocted from Brazilian bad debts mixed with big US gains. And she twice claimed she was a partner in MA State court, ditto in FL Bankruptcy Court, ditto in Tax Court filings, likewise in depositions.

Lo and behold, in December last year, with trial coming on next week, Susan files an out-of-time election to participate, claiming she never was a partner.

Ya can’t make this stuff up.

Mike the tax lawyer now claims that the cash Susan paid for her interest in Leila Verde was stolen. According to Mr. Rogers, the interest was never conveyed, and Susan isn’t a partner. Of course, neither Susan nor Mike the tax lawyer agree to pay back the tax breaks derived from Susan’s deductions.  And Susan claims Mike the tax lawyer or someone else signed her name to the purchase agreement, so Statute of Frauds. So now Susan isn’t a partner.

For you civilians, the Statute of Frauds, one of King Charles II’s greatest accomplishments, says no one can be sued on certain kinds of contracts unless they sign on the dotted line. Except the only one who could sue Susan is Mr. Rogers, not IRS; IRS has no contract with Susan.

Judge Wherry isn’t even looking, much less buying.

We got the duty of consistency; if you take a tax position and benefit thereby, you can’t go home again if the SOL has run. Then we got tax benefit rule; Susan got a yuge write-off and it’s now too late for her to pay tax when she claims she never should’a gotten it. Susan, you’re stuck. And judicial estoppel; you told the Court over and over again you were a partner. In the immortal words of Carole King’s 1971 hit, “it’s too late, baby, now it’s too late.”

But Mike the tax lawyer is in there pitching when a lesser lawyer would be headed for the showers.

Susan claims Mike abused her. He was “very demanding, very imperious.” Order, at p. 7.

“Mrs. Hartigan argues to this Court that Mr. Hartigan caused her to make the Leila Verde purchase through deception, abuse, manipulation, exploitation and domination in order to shelter his own income. She claims to have derived no benefit from the investment. She also alleges that she did not prepare or review the Hartigans’ joint tax returns, nor did she sign the tax returns of her own will. Mrs. Hartigan further asserts that she was not ‘actively involved’ in the Sugarloaf lawsuit or the Seyfarth Shaw lawsuit except for depositions; her husband was the one taking all actions.” Order, at pp. 14-15.

Oh yes, Susan and Mike the lax lawyer are still married. But she claims they live apart. Cue the violins.

The problem is that innocent spousery, like the Ancient Mariner, requires one of three: either a deficiency proceeding, collection activity or a stand-alone, but not a TEFRA FPAA. The marital partnership isn’t part of a TEFRA partnership-level slanging match, so save it, Susan, for the after-trial afterparty.

*Derringer Trading LLC 20972-07 8 11 17

Alan Gregory Woolsey and Anita Lee Woolsey. 2017 T. C. Sum. Op. 62, filed 8/10/17, are in front of The Judge With a Heart, STJ Armen, and they have help who joined them on the day of trial, namely, viz., and to wit, two heavy-hitting super-credentialed partners in a 130-lawyer powerhouse.

And they lose.

Because they go to trial without the key witness, their daughter who has struggled with drug abuse. But see below; they may know more than we do.

Here’s the story. I give the dates, contrary to my usual custom, because they matter.

“This case was originally called for trial on March 21, 2016, in San Antonio, Texas.  At that time petitioner Alan Gregory Woolsey (Mr. Woolsey) appeared and met with pro bono counsel, who advised him that Ms. [daughter] was an important witness.  Mr. Woolsey then orally moved for a continuance in order to allow petitioners time to call Ms.[daughter] as a witness on their behalf.  The Court granted Mr. Woolsey’s motion.

“In due course this case was called for trial on Monday, January 9, 2017, in San Antonio.  At that time petitioner Anita Lee Woolsey (Mrs. Woolsey) appeared and met with pro bono counsel, who then entered their appearances on petitioners’ behalf and tried the case that afternoon.  Although Ms. [daughter] was apparently in the hospital from January 6 through 9, 2017, and therefore not available to testify on January 9, petitioners neither requested that the case be tried later during the week of January 9 nor moved for a continuance.” 2017 T. C. Sum. Op. 62, at pp. 5-6. (Name omitted).

This is another of those TX heartbreakers (sans Tom Petty) where Papa and Nana supported daughter’s three young’uns for nine months of year at issue. Then Papa and Nana bought a mobile home for daughter and said young’uns, whereupon daughter’s no-account boyfriend moves in for the last three, and daughter and boyfriend file MFJ without benefit of clergy, judge, clerk or ship’s captain, and take the young’uns as dependents.

See my blogpost “A Heartbreaker,” 2/7/17, for an even sadder story. With a big-hearted TX pro bono attorney who also loses.

Well, of course in the jumpball between parent and grandparent, parent gets the exemptions and child credits for the young’uns. Daughter isn’t a qualifying relative because TX recognizes commonlaw marriage, and the MFJ return holds up for want of evidence that daughter and no-account weren’t married in the Eyes of Texas.

Please, please, please don’t think I’m unloading on the pro bonos, be they single-shingle, a couple guys in it together (hi, judge Holmes), or wearers of shoes of the purest white. They’re giving their golden hours for free to the Papas and Nanas, who would otherwise be utterly helpless before the pitiless pillory of Section 152 and the regs.

I’m sure STJ Armen would have given them a bye. The deficiency is only $6K.

But maybe daughter (and no-account) aren’t the witnesses you really want to put on.

William C. Owens and Sharon Pigg Owens, 2017 T. C. Memo. 157, filed 8/10/17, tell the story of William C. (“Wild Bill”) Owens, hard money lender, to The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Illustrious, Industrious, Ineffable, Indefatigable, Ineluctable, Incontrovertible, and Irrefutable Foe of the Partitive Genitive, Old China Hand and Master Silt Stirrer, Judge Mark V. Holmes.

BTW, Judge Holmes loves real estate wheeling and dealing. And Wild Bill is his kind of guy. And if you’ve forgotten what a hard money lender is and does, see my blogpost “The Good Excuse Sweepstakes – Not a Winner,” 11/15/12.

Wild Bill took over the family money-lending business despite his B. A. in literature, and ran both the business and his own lending operation. He’d lend to wildcatters who told him a good story, and did well, until he lent to a commercial laundry operator personally (not through the family business) and got taken to the cleaners (sorry, guys).

The launderers had the biggest operation in The City by the Bay, doing hotels and hospitals. They had water rights, which are gold in CA (“Whiskey is for drinkin’ and water is for fightin’ about,” as Mark Twain said). But they had to expand, and the conventional lenders said “Nix.” Wild Bill lent and lent, until he was $16 million into the deal.

He finally had to subordinate to a mortgage company he found to bail out the launderers. You can guess the rest, but I’ll tell you anyway, because I’m a garrulous, loquacious old man, and “the home folks have long ago learned to run when we begin…so we have to spin our yarns to the stranger within our gates,” as a far better writer than I put it.

The launderer finally craters in the 2008 tsunami, so Wild Bill takes a business bad debt deduction.

IRS claims Wild Bill isn’t in the lending business, his family business is.  Judge Holmes examines the cases and finds Wild Bill, both personally and through his personally-funded grantor revocable disregarded trust, made more than enough loans during the years at issue, both to the launderers and unrelated others who could tell him a good story, to be in the hard money business.

Wild Bill had the family business employees keep both the business and his personal records. So what, asks Judge Holmes; why hire extra staff? Note neither he nor IRS ask if Wild Bill paid the employees for doing his personal work, and, if not, whether that was a taxable benefit to Wild Bill (and Sharon).

The deal with the launderers looked like it had an equity kicker, so maybe the loans were equity and not debt. But the documentation on that score wasn’t of the best (maybe sometimes ambiguity beats clarity), and anyway there are enough indicia of debt to show that Wild Bill and the launderers papered the debt well enough to get by.

Finally, when the launderers went belly-up as aforesaid, Wild Bill filed a proof of claim in the ensuing bankruptcy. IRS claims maybe so the debt didn’t go bad that year, as Wild Bill was hoping for a payout.

“Finally, the Commissioner argues that because Owens filed a proof of claim, he must have expected at least some recovery.  While a proof of claim may indicate that a taxpayer had some hope for recovery, we are reluctant to determine the outcome of this case based on Owens’s steps to secure his place in the order of distribution.  ‘No single factor is conclusive as there are no absolutes in this area.’ Am. Offshore, Inc. v. Commissioner, 97 T.C. at 595.”  2017 T. C. Memo. 157, at p. 42.

Wild Bill wins.

Takeaway- A B. A.in literature may help you tell a good story, but the paper is the thing…whether it’s ambiguous or precise.

And a Taishoff “Good Job” to G. Haislet, Esq.,  and M. Beuselinck, Esq., Wild Bill’s legal team.

Aeschylus Got It Right

This is one for the record book. A lawyer is in a twenty-one (count ‘em, twenty-one) year battle with IRS over back income and withholding, fights it out in Tax Court, enters into an installment agreement, complies 100%, and (get this) claims misapplication of payments that would satisfy everything in full.

IRS trots out the old Section 6402 “we can apply overpayments how we like.”

Except this isn’t an overpayment. This is right on the nose, spot on, thus far and no farther.

And the lawyer (now retired and hoping for peace at long last) draws Judge Gerber. No friend of the taxpayer he.

Take a deep breath. Let it out. Take another. Hold it for one second.

The lawyer wins! One hundred percent!

Breathe.

The case is Charles Edward Fagan, 2017 T. C. Sum. Op. 61, filed 8/9/17.

Mr Fagan wanted to retire in 2008, with his past marital and tax woes behind him. He duked it out with IRS, they stipped to a deal, and he stuck by it. Paid every centavo, kopek, and zloty.

But IRS continually bombarded Mr Fagan with notices and bills, and seized cash from his bank account (which they refunded), all for taxes and withholding that he had paid.

Finally, the fight boils down to $2300. IRS claims Mr Fagan owes the $2300, Mr Fagan claims he owes nothing.

Enter Judge Gerber.

“The record in this case reveals a convoluted and complex relationship between respondent’s collection offices and petitioner.  The record of these interactions consists of several hundred pages of correspondence, transcripts, reports, and notes of the parties.  Although the parties had settled one collection due process case and entered into an installment agreement with which petitioner complied, the Service was not able to adjust its records to properly reflect the resolution; and it continued to issue notices and seize property in satisfaction of tax liabilities that had been settled and satisfied.  The interaction and confusion began in 2006 and has continued through the instant collection due process case.

“The only position advanced by petitioner is that this complex series of transactions between him and the Government results in no collectible outstanding 2011 income tax liability.  The main thrust of respondent’s argument is that the Service has absolute authority to apply overpayments in any manner it chooses. Petitioner counters that his is not a question of the application of an overpayment but involves the misapplication of payments and a duplication of paid tax liabilities resulting in a $2,900 difference from respondent’s records that should be used to satisfy the 2011 income tax liability.” 2017 T. C. Sum. Op. 61, at p. 7.

This sort of thing is why the IRS gets bad press. And why bloggers like me stay in business.

And why Judge Gerber gets to play the hero.

“Respondent’s position that this case involves an overpayment is incorrect. There were payments that were made in satisfaction of a series of outstanding tax liabilities.  There were misapplications of payments that petitioner and respondent had agreed were to be applied against specific liabilities.  Such payments are not ‘overpayments’ which are covered by section 6402 as they were payments that respondent agreed to apply against specific tax liabilities.  One of those tax liabilities had been fully satisfied.  In addition, respondent applied one of petitioner’s refunds to accounts that had been satisfied.  These errors and misapplications totaled $2,900, an amount sufficient to satisfy the 2011 income tax liability respondent seeks to collect.” 2017 T. C. Sum. Op. 61, at p. 9.

Mr Fagan wins.

Note to the Jersey Boys: Many thanks for the intriguing CLE/CPE yesterday. Note also that people fight in Tax Court not merely for money, but for the right to be heard. Your case of the sixty buck ticket to justice for a $23 deficiency would be silly if the issue were only $23. But it often isn’t. It’s about the right to be heard, whether in the right or in the wrong. Aeschylus put the words in the mouth of Prometheus Bound, as the play ends with him chained to the collapsing rocks: “Behold I am wronged!”

No, this is not becoming a political blog. I just needed a snappy headline to pick up on a case that I had given a pass the other day.

My colleague Peter Reilly, CPA, over at Forbes, e-mailed me yesterday afternoon to ask if I’d passed over BCP Trading and Investments, LLC, William T. Esrey Trading Partners, LP, A Partner Other Than The Tax Matters Partner, 2017 T. C. Memo. 151, filed 8/7/17.

I replied thus: “yes, I pass. I’ve blogged the Son-of-Boss mix-and-match many times, and there’s nothing new here but a few extra window-dressing layers. The SOL waiver issue is really fact-based, and everybody who claimed E&Y sold them out had lawyered up long before. AFAIK, no one ever won a Son-of-Boss in Tax Court or on appeal. So I really have nothing new to say.”

So I left it at that, went home, had a Gibson, had dinner, went to sleep.

But this morning I had a thought to put in a blog. I was reminded of the circumstances wherein the title hereof, somewhat altered, arose, by a few of Judge Holmes’ sentences in BCP. Try this.

“LeMay even received a call from a reporter at the New York Times asking him about the E&Y investigation in 2003. Given their close relationship, we find it more likely than not that he told Esrey about the call. In May 2004 Esrey hired Baker & McKenzie and LeMay hired Arnstein & Lehr to represent them before the IRS. These facts lead us to find that Esrey and LeMay understood far more than they let on and undercut their claim that they blindly relied on E&Y.

“As for Kalkhoven and Pettit, E&Y told them in May 2002 that it was giving the IRS documents related to ‘certain transactions in which you were involved.’ E&Y told them to speak with McKee Nelson if they had concerns. Kalkhoven and Pettit hired Fulbright & Jaworski and Vinson & Elkins in September 2004 to represent them before the IRS. With these law firms representing them, Kalkhoven and Pettit didn’t object to Bolton’s continuing to sign extensions through April 2007. Given these facts, we cannot believe that E&Y manipulated Bolton into signing the 2004 Form 872-P and hid its intent from Kalkhoven, Pettit, Esrey, and LeMay as they claim.” 2017 T. C. Memo. 151, at p. 44.

Takeaway: If you wish to plead your injured innocence, please make sure you lawyer up only after the fact. If you don’t, the weight of those white shoes may sink you without trace.

An old football tactic, where passcatchers gang up on defenders, seems to be the latest gimmick in IRS’s cubby of crafty moves, where they keep their best ways to blow off pro se litigants. Here’s Judge Cohen to deliver a rebuke to such gaming the system.

Meet Joseph H. Hunt, Docket No. 30295-15, filed 8/8/17. Joe’s starring in a designated hitter, and did he ever get hit.

IRS makes the standard motions to produce documents and to compel responses to interrogatories. Maybe Joe didn’t follow the Branerton play-nice rule. Many pro ses get the deer-in-the-headlights reaction to a Branerton show-and-tellagram.

So Joe has to hand over all the documents IRS wants, with one (unstated) exception.

But when it comes to the interrogatories, IRS’ cutseyness hits a snag.

“It appears to the Court that the interrogatories, with multiple pages of convoluted instructions and definitions served on an unrepresented taxpayer, are excessive under Rule 71(a) and should be limited under Rule 70(c), Tax Court Rules of Practice and Procedure. See Pleier v. Commissioner, 92 T.C. 499 (1989).” Order, at p. 1.

Judge Holmes also called out IRS for zone-flooding in the interrogatories in my blogpost “Deft And Slimy,” 4/1/16, when IRS tried to duck the Rule 71(a) 25 interrog limit by putting in subparts and subsections.

Now the game is shooting out pages of instructions, definitions, smoke, dust and mirrors, to befog, bludgeon and bewilder the pro se.

That might work in a big-ticket fistfight where the numbers exclude the last six digits, and the lawyers all wear custom-made tassel loafers and Gieves & Hawks suits. Cf., as these same high-priced dudes say, my blogpost “Win Your Case at Discovery – Part Deux,” 2/24/15.

But Judge Cohen wants IRS counsel to show up in The City by the Bay next month and explain why the zone was flooded on Joe. And Joe can come, too.