A Question of Fax

I step out of my accustomed role as reporter on this blog, to assume that of advocate, my general off-blog occupation.

And today it’s again about ABA Model Rule 3.7. You know, the one that says a party’s attorney can’t be a witness. At least, that’s what everyone thinks it says.

But that’s not all it says. Even though many judges echo the immortal words of my old Bronx and Upper West Side neighbor E. A. Poe, “only this and nothing more.”

See my blogpost “A Non-Christmas Carol,” 12/23/13.

Well, today that Obliging Jurist Judge David Gustafson wants IRS and Tarig Gabr’s trusty attorney, whom I’ll call Johnny E, to bukh, as they say in the world’s largest democracy, about said Model Rule, first in a phone-a-thon next week and two weeks later at an evidentiary hearing.

Read all about it in Tarig Gabr, Docket No. 24991-15L, filed 9/25/17, a designated hitter to oblige this hard-laboring blogger.

IRS hit Tarig with a Section 6694(b) chop. Those of us in the racket know this is the preparer chop, so no SNOD and straight to assessment, collection and a NFTL. Johnny E gets on the horn with IRS, who gives him a fax number to fire off the 12153 requesting a CDP. Maybe Tarig never got the actual NFTL over to Johnny E, so he could see where to shoot off the 12153. Wouldn’t be the first time an attorney had to hurry the throw with the clock running down.

Howbeit, Johnny E faxed it as directed, he says, but to the wrong ACS (Automated Collection Services) office. It went to KC, not Philly. The KC IRS guys reprised the immortal words of Brian Friel and shouted “Philadelphia Here I Come.” Only the 12153 got to Philly after the 30-day cutoff, so Philly offered Tarig an equivalent hearing, from which, as we know, one cannot petition the “small court” in the Glasshouse at 400 Second Street, NW. And the equivalent hearing established Tarig was too late for a CDP.

Johnny E petitions the equivalent hearing, claiming IRS drew him offside.

Now we all know that mistaken advice from anyone at IRS cuts no Grey Poupon. So Tarig and Johnny E are out, yes?

Not quite. See  I.R.M. 5.19.8.4.2(8). “…”if it is determined that the taxpayer received erroneous instructions from an IRS employee resulting in the request being sent to the wrong office,’ the postmark date for when the request was sent to the incorrect office is used to determine timeliness.” Order, at p. 2. That’s strictly for CDPs; don’t try this with a SNOD. Better still, have the NFTL in hand when preparing the 12153.

The Reg., 26 C.F.R. sec. 301.6320-1(c)(2), para. A-C6. says “sent or delivered.” Note it doesn’t say “mailed.” Wherefore, the fax that Johnny E sent, which everyone admits was timely, would have been OK but for going to the wrong IRS ACS office.

So we have a question of fax (sorry, guys). Did an IRS agent give Johnny E the wrong number?

But there are only two people who can testify for sure, namely, to wit and viz., Johnny E and the IRS person.

But Johnny E is Tarig’s trusty attorney; he sent the fax, signed the petition, and will be standing by Tarig’s side when the trial starts in the Glasshouse.

So we come to Rule 3.7. Attorneys can’t be witnesses. Except.

I’ll quote: “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (3) disqualification of the lawyer would work substantial hardship on the client.” ABA Model Rule of Professional Conduct 3.7, which Tax Court Rule 202(a)(3) hangs on the Glasshouse wall.

Johnny E was there at the beginning. Having Tarig find another lawyer to handle the evidentiary hearing is clearly onerous. Johnny E is the sole witness for Tarig.

And most importantly, this is a hearing, not a trial. There are no jurors to be confounded, confused or misled. The trier of fax (or fact) is one who can echo the old phrase “the process of distilling truth from the testimony of witnesses, whose demeanor we observe and whose credibility we evaluate, is the daily grist of judicial life.”

Judge Gustafson is obliging, but I doubt very easily taken in by random lawyer blather.

So read the whole Rule., and let Johnny E tell his tale.