In Uncategorized on 09/12/2017 at 16:02

No, that’s not my phraseology, although I wish it were. My ignorance of seventeenth century Hebrew phraseology clearly disqualifies me from a Tax Court judgeship, even an STJ-ship.

That phrase comes from the linguistic arsenal of none other than The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Inveterate, Irrefragable, Irrefutable, Illustrious, Incontrovertible, Indefatigable, Ineffable, Ineluctable and Insuperable Foe of the Partitive Genitive, Old China Hand and Master Silt Stirrer, Judge Mark V. Holmes.

I welcome back to the blog the source of the aforementioned tohubohu, Harbinder S. Brar & Barbara P. Brar, Docket No. 1295-15, filed 9/12/17, a designated hitter from Judge Holmes’ wordprocessor.

Fans of this my blog may remember Br’er Brar’s previous appearance in my blogpost “Deft and Slimy,” 4/1/16, the companion FPAA to this partner-level deficiency.

Harb & Barb slugged it out to an almost-finish with a stip, and went off to do numbers. But they couldn’t agree about the $1,427,569 flow-through loss from Harb & Barb’s Sub S; IRS kicked $1,079,464 of it.

Judge Holmes puts the issue succinctly.

“The dispute here is whether, in performing the computation needed to enter decision in this case, we need to ignore the larger or the smaller of these amounts.” Order, at p. 2.

The rule is that this deficiency proceeding can only consider nonpartnership items.

For any who find this stuff of interest post-PATH, here’s the story.

“The key case, as both parties recognize, is Munro v. Commissioner, 92 T.C. 71 (1989). The Brars argue that in Munro we said ‘respondent may not take his proposed TEFRA partnership adjustments into account in a deficiency proceeding for any purpose, including the computation of the deficiency arising out of adjustments to nonpartnership items.’ Id. at 74 (emphasis added).’ This would suggest we ignore only the lower amount.

“The Commissioner points out that we also said in Munro that ‘partnership items must be ignored in deficiency proceedings, which relate exclusively to nonpartnership items,’ id. — note the absence of the qualifying “proposed” in this sentence. This would suggest we ignore the larger amount.” Order, at p. 2.

And so have courts read Munro to and including our pal Jason Chai.

But Judge Holmes sends the parties off to work everything out after he enters decision for IRS.

“We need to sever this case to allow for entry of this decision. We urge the parties to submit a stipulated decision in the companion partnership case quickly so the Brars don’t end up having to pay and then seek an overpayment refund or otherwise suffer from a failure to coordinate the two cases.” Order, at p. 3.

Let’s not stir any more silt.


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