Attorney-at-Law

Archive for September, 2017|Monthly archive page

Y’ALL COME BACK NOW, Y’HEAR?

In Uncategorized on 09/22/2017 at 14:47

A true old-time South Carolinian, that Obliging Jurist Judge David Gustafson has an old-time Southern word for Tyler James Arnold, Docket No. 18858-16, filed 9/22/17, even though Ty is apparently a Yankee from the Upper Midwest.

Back on Monday, in the Motor City, Judge Gustafson had Ty’s case called for trial. IRS’ gunner from Chief Counsel’s Office was standing tall, but Ty was nowhere to be found. The gunner opened up, and Judge Gustafson decided to enter decision based upon said opening, and hits Ty with a $4K deficiency.

But the Obliging Jurist goes even farther than the twain or thrain that he ordinarily goes, when asked for barely a millimeter.

“However, the Court directs petitioner’s attention to Tax Court Rule 162, which permits the filing of a Motion to Vacate within 30 days of this Order being entered. If petitioner had reasons for failure to communicate with respondent and failure to appear at the Trial Session, petitioner should state those reasons in a motion to vacate.” Order, at p. 1.

Now I don’t know if there are special circumstances here. A docket search only shows IRS’ motion to dismiss for lack of prosecution a week before the calendar call, with no statement of facts , and Judge Gustafson’s order hereinabove cited.

But I’ve never see one of these second-chance invitations, and I call on my readers, that learned assemblage, to enlighten me if this is SOP.

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WHEN

In Uncategorized on 09/21/2017 at 15:11

It was the home of the 8th Coast Artillery when it was built around 1910, it occupies a whole large city block, and is now or shortly will be an ice palace. It was supposedly the largest armory in the world. But I remember it from the days of my misspent youth, when the Kingsbridge Armory provided the ultimate echo chamber under the Jerome Avenue “el.” And we sang “When,” the 1959 Kalin Twins hit, with the verve and reverb that many a record producer would have envied (or so we were certain, although none came to hear us).

But “when” forms the foundation for this gem from the wordprocessor of Judge Goeke, James A. McColman & Kari McColman, Docket No. 24543-15, filed 9/21/17.

It’s Jim’s tale, and a sad one. Jim was running a sole prop bill collecting outfit when he fell ill with a disabling disease. An audit was underway on a previous year, but Jim never responded to IRS’ appointment letters. Enter Bill S., Jim’s trusty attorney (miscalled POA by Judge Goeke; one who acts pursuant to a Power of Attorney is an “agent” or, in the case of Form 2848, a “representative”; a Power of Attorney is either a piece of paper or a concatenation of electrons).

Bill S. tries to work the problem, but Jim is out of it and the paperwork is not immediately to hand, so IRS hands Bill S. a SNOD for him, and Bill S. timely petitions. IRS’ counsel sends the matter off to Appeals, and there’s a great deal of backing-and-filling, as Bill S. digs up and sends in batches of paperwork to back up Jim’s deductions.

Judge Goeke time-lines it all. It’s twenty (count ‘em, twenty) months from when Bill S. gets on board with IRS until IRS concedes the deficiency, and offers to settle.

Bill S. says no, I want the $7700 in fees and disbursements I’m owed. Me, I don’t doubt Bill S. put in the time and effort, or incurred the disbursements. And Bill S. wants Judge Goeke to cut Jim some slack.

“Petitioners maintain that despite their failure to produce any records to the initial IRS examiner, respondent was not justified in issuing the notice of deficiency because at least a portion of the claimed expenses should have been allowed under Cohan v. Commissioner, 39 F.2d 540 (2d Cir.1930).” Order, at p. 5.

But IRS didn’t have to concede until it was reasonably satisfied that Jim’s numbers, as delivered by Bill S., were correct. Before that, IRS was justified. And the last of the numbers only came in a month before IRS caved.

“To be substantially justified, the IRS’s position must have a reasonable basis in both fact and law. The case law applies facts and circumstances test to weigh whether the IRS was reasonable. When IRS employees act promptly to resolve a case after receiving substantiation that the taxpayer is required to maintain, the timing of the production of the substantiation is a significant factor in deciding whether the IRS was reasonable. Sec. 301.7430-5(c), Proced. & Admin. Regs. The regulation does not, however, require the IRS to mediate the government’s position when there is a lack of substantiation by applying Cohan or some other relaxed standard. Petitioners do not offer us any authority for their position in this regard and we decline to introduce such a concept based on the facts of this case.” Order, at pp. 5-6. (Citation omitted).

As soon as Bill S. came in with the real goods, IRS folded in about a month. That’s good enough for Judge Goeke.

IF YOUR BOSS PAID, YOU PAY

In Uncategorized on 09/20/2017 at 17:04

And it doesn’t matter if your boss paid directly or indirectly, as long as you didn’t. That’s the reason why John Curran & Carey Curran, filed 9/20/17, Docket No. 7500-16L, filed 9/20/17, are singing the blues after this designated hitter.

John’s disability insurance payments came from Prudential, via his boss Jet Blue, but John never got W-2s showing the premiums listed as salary, wages, compensation, or anything. Because they weren’t. Jet Blue paid Prudential, and Prudential paid John.

John claims his disability was tax-exempt, except Section 104(a)(3) says they’re not, unless the premiums were compensation to John (and taxable as such), or that John paid them his own self with after-tax dollars. In fact, an AO so advised John even after he failed to petition the SNOD that hit him.

But the Pru was generous to a fault, and paid John more than he was entitled to for the year at issue. John paid Pru back the next year, and Pru gave John a claim-of-right letter, saying he could deduct the overpayment that year.

See, says John, it’s exempt.

Negatory, says The Judge With A Heart, STJ Armen. If you got taxable income under a claim that you were entitled to it, but it turns out you weren’t and have to give it back, you can deduct the giveback, but only if you paid tax on it previously. John never did.

So John is out, right? He blew the 90-days, and Appeals tossed him.

Not so fast, says STJ Armen, proving once again he has a heart.

“Petitioners requested an installment agreement as a collection alternative on their Form 12153. In response, the settlement officer requested financial information. At this time the record is unclear as to what financial information petitioners submitted to the settlement officer although petitioners contend that they submitted all of the financial information that had been requested of them. In sum, viewing the facts in a light most favorable to petitioners as the Court is obliged to do given the nature of the pending motion, the Court concludes that there is a genuine issue or dispute of material fact.” Order, at p. 8.

So did Appeals abuse its discretion by tossing John without considering all the documents they asked for and that he gave them?

Summary J on liability for tax and chops, but maybe John gets the IA he wanted.

UNSAFE, UNSOUND, BUT YOU OWE TAX

In Uncategorized on 09/19/2017 at 18:44

Thomas Joseph Ritter, 2017 T. C. Memo. 185, filed 9/19/17, was in the wrong class of victim when the Office of the Comptroller of the Currency whanged the collective pates of Jamie Dimon & Co. for “’deficiencies and unsafe or unsound practices in [Chase Bank’s] residential mortgage servicing and in the Bank’s initiation and handling of foreclosure proceedings’ that the OCC had identified.” 2017 T. C. Memo. 185, at p. 3.

As a result of said pate-whanging, TJ, whose home was foreclosed by the Chasers during the meltdown, was a recipient of coin of the realm from the QSF, or Qualified Settlement Fund, which the deficient, unsafe and unsound ponied up to atone for their sins aforesaid.

The QSF was preceded by the IFR, or Independent Foreclosure Review, which foreclosed on Chase’s delicitons. That document delineated which among those who lost their homes while enduring bankruptcy proceedings lost their equity, and who was just getting some dough anyway.

TJ never asked for the review mandated by the IFR, which might have put him in the lost equity camp and made at least part of the payout tax-free as damages. Even if he did, Judge Chiechi points out Chase won a lift-stay in Bankruptcy Court, which means Chase proved no equity in the premises.

In the immortal words of Robert Alan Zimmerman, “when you ain’t got nuthin’ you got nuthin’ to lose.”  So TJ only gets the taxable payout.

I’ve done those lift-stays. I can’t say they were the best part of my practice.

You can guess the rest. TJ gets a 1099-MISC saying he got $31K, and talk to your tax adviser. Whether TJ talked to a tax adviser, or what his/her qualifications were, or whether TJ heeded said adviser in good faith, all are entirely immaterial here, as in a burst of magnanimity, IRS concedes the chops.

The tax is another story.

Judge Chiechi: “Section 468B and the regulations thereunder provide special rules for the taxation of a designated settlement fund, like the QSF.  Pursuant to section 1.468B-4, Income Tax Regs., whether a distribution from a designated settlement fund, like the QSF, is includible in a payee’s gross income is generally determined by reference to the claim in respect of which the distribution is made and as if the distribution were made directly to the payee by the transferor to the designated settlement fund.

“The $31,250 payment that petitioner received from the QSF was a payment to remedy certain ‘deficiencies and unsafe or unsound practices in [Chase Bank’s] residential mortgage servicing and in the Bank’s initiation and handling of Section 468B and the regulations thereunder provide special rules for the taxation of a designated settlement fund, like the QSF.  Pursuant to section 1.468B-4, Income Tax Regs., whether a distribution from a designated settlement fund, like the QSF, is includible in a payee’s gross income is generally determined by reference to the claim in respect of which the distribution is made and as if the distribution were made directly to the payee by the transferor to the designated settlement fund.

“The $31,250 payment that petitioner received from the QSF was a payment to remedy certain ‘deficiencies and unsafe or unsound practices in [Chase Bank’s] residential mortgage servicing and in the Bank’s initiation and handling of foreclosure proceedings’ that the OCC had identified.  Pursuant to the IFR and the February 28, 2013 amendment, a borrower was not required to show financial harm or request a review through the IFR in order to receive a monetary payment.  The February 28, 2013 amendment expressly provided that the payments from the QSF did not ‘in any manner reflect specific financial injury or harm that may have been suffered by borrowers receiving payments’.  Moreover, the categories for the so-called standard payment amounts set forth in a document titled ‘Independent Foreclosure Review Payment Agreement Details’ did not include any amounts for lost equity.” 2017 T. C. Memo. 185, at pp. 8-9.

In any event, the payment wasn’t anything like excess proceeds from a foreclosure sale that go to the foreclosed mortgagor, and which might escape tax per Section 121.

TJ owes the tax.

For some background on one of the many “unsafe and unsound” foreclosure practices, see my blogpost “Robosigner?” 12/23/16.

As this is a non-political blog, I will not comment on Messrs. Dimon & Co., and his fellows. That is, not here.

NO GOOD DEED – REDUX

In Uncategorized on 09/18/2017 at 19:02

I have often on this blog decried schadenfreude, the peculiar quality of gloating over another’s misfortune. Especially do I decry that seedy behavior when the misfortune befalls a colleague and a much-respected practitioner whose good nature and desire to help betrayed him.

I won’t rehash the tale of Clark J. Gebman and Rebecca Gebman, 2017 T. C. Memo. 184, filed 9/18/17. I avoided doing so in my blogpost “No Good Deed,” 5/5/17. I surmise it all occurred at the usual calendar call scrimmage, with the headlights glaring and the deer staring.

In step the Jersey Boys, total pros and pro bono. And as it’s a husband and wife in this case, they wind up trying to represent both, with no informed written consent per Rule 1.9 of the ABA Model Rules of Professional Conduct.

Of course, that assumes that the conflict is waivable, as to which I do not opine. Tax Court Rule 24(g) is much the same.

OK, so Judge Halpern, after discussing the facts and arguments extensively (which I won’t, as the Jersey Boys have taken enough punishment), tells the attorney from Hackensack to “obviate the conflict” or Judge Halpern will toss him.

Exactly how to “obviate the conflict” I cannot tell.

VOLUNTARY MALGRÉ LUI

In Uncategorized on 09/18/2017 at 18:36

I’m not showing off my high school French. My expensively-educated daughters speak much better French than I ever did or ever will, and my even-more-expensively-educated granddaughters will put us all in the shade.

But today I return to the theme of my blogpost “Straightforward, Expansive, Useless,” 4/17/17. Once again, a whistleblower turns up the nasty, but the perp suddenly has a come-to-you-know-Whom and turns away from wickedness.

Whereupon the Ogden Sunseteers, aided and abetted by Senior Tax Analysts and Revenue Agents and their somewhat casual narratives of past times, slam the checkbook shut and play Aloha on the steel guitar.

Today it’s Whistleblower 14376-16W, 2017 T. C. Memo. 181, filed 9/18/17, hereinafter Six One Six Whiskey. Six One Six Whiskey whistled down three (count ‘em, three) perps, with offshore cash stashes. Said perps promptly file for Offshore Voluntary Disclosure. IRS even told one of them that they got the goods on said perp from an outside source. And used Six One Six Whiskey’s info to suss out the perps’ stories, to make sure they were in fact coming clean.

The Senior Tax Analyst and the Revenue Agent are both declaring under penalty of the usual in search of summary J, but ex-Ch J Michael B. (“Iron Mike”) Thornton finds their declarations a trifle sketchy and not wholly consistent.

Moreover, IRS tries to submarine in an affirmative defense, after the time to amend the answer is gone. Here’s the submarine footnote. “While respondent did not abuse his discretion by denying petitioner’s claim for award, even if respondent had used petitioner’s information, any award paid to petitioner would have been purely discretionary under section 7623(a), as the total amount in dispute with Taxpayer 1 falls well below the threshold requirement of $2,000,000 in dispute, required by section 7623(b)(5) for a mandatory award.” 2017 T. C. Memo. 181, at p. 4.

Six One Six Whiskey’s trusty attorney is all over this, and moreover sends in a motion to compel production of documents, inasmuch as a document offered as an exhibit in the summary J motion differs from that produced in discovery.

And ex-Ch J Iron Mike finds that evidence in the record doesn’t preclude the possibility that the $2 million threshold was hit.

I’d give Six One Six Whiskey’s attorney a Taishoff “good job,” and a plug, but her/his name is sealed. Good job, anyway.

Clearly no summary J.

The farce that wiseguys suddenly experience regeneration when a blower surfaces in their immediate vicinity can only be enacted by the light of the Ogden sunset.

THE HELICOPTER PILOT AND THE VIRGIN

In Uncategorized on 09/18/2017 at 17:33

No, not a plot-pitch for a remake of Miss Saigon; the virgin in this case is a Virgin Islander of our past acquaintance, la famille Vento.

This is the story of Jesse A. Linde and Dawn Linde, 2017 T. C. Memo. 180, filed 9/18/17, but Dawn only appears on those rare occasions when Jesse comes back to their marital home in AL.

Jesse is a Ft. Rucker trained helicopter pilot, who retired from the Army once, came back for Iraq, retired again, and became a civilian contractor living in a converted CONEX container in Iraq, while flying choppers hither and yon. Jesse was over-age by US standards, and there were bunches of young chopperheads getting all the good Stateside jobs.

Jesse would work long arduous days in Mesopotamia, and come home for brief stints. He says his nearest and dearest would have visited him in Europe, but his son-in-law had a service-connected disability, so he couldn’t travel. Though he was on annual contracts, these were always renewed during the years at issue. And Jesse wasn’t planning on retiring soon.

Judge Vasquez buys it.

IRS says no foreign earned income exclusion, because Jesse’s true home was back in AL.

No, says Judge Vasquez.

“Mr. Linde’s principal place of employment during the years in issue was in Iraq.  Therefore, whether his tax home was in Iraq rests on whether his abode was in the United States during the years in issue.  Neither section 911 nor the regulations thereunder define ‘abode’.  Thus we turn to our caselaw.

“In prior section 911 cases, we have examined and contrasted a taxpayer’s domestic ties (i.e., his familial, economic, and personal ties to the United States) with his ties to the foreign country in which he claims a tax home in order to determine whether his abode was in the United States during a particular period.” 2017 T. C. Memo. 180, at p. 12.

Jesse kept his military bank account, which he could access from AL but the account wasn’t maintained there.

The real capper is our old friends la famille Vento. After a brisk jaunt through the caselaw, with a bow to the seven Sochurek factors, Judge Vasquez fetches up with Judge Hardiman’s decision in Vento.

“In Vento v. Dir. of V.I. Bureau of Internal Revenue, 715 F.3d 455, 467-468 (3d Cir. 2013), the Court of Appeals for the Third Circuit grouped the Sochurek factors into four broad categories:  (1) the taxpayer’s intent, (2) the taxpayer’s physical presence, (3) the taxpayer’s social, family, and professional relationships, and (4) the taxpayer’s representations.  The Court of Appeals for the Eleventh Circuit, to which an appeal in this case would lie (absent a stipulation to the contrary), adopted the Vento categories with the caveat ‘that those factors are not exclusive; rather, the appropriate analysis is one based on the totality of the circumstances relevant to the residency issue.’” 2017 T. C. Memo. 180, at pp. 21-22. (Citations omitted).

You don’t need to be away permanently, or to make your permanent residence abroad. You can keep a US residence, and even have your nearest and dearest dwell in the land and be fed with its riches, as a much Higher Authority put it.

“In sum, Mr. Linde’s acceptance of a long-term assignment in Iraq and his sustained physical presence there weigh heavily in favor of bona fide residency, and we so hold.  See Commissioner v. Estate of Sanders, 834 F.3d at 1280; Vento, 715 F.3d at 470.  Accordingly, since we have already found that Mr. Linde’s tax home was in Iraq during the years in issue, petitioners are entitled to the foreign earned income exclusions claimed on their returns.” 2017 T. C. Memo. 180, at p. 24.

Jesse does get dinged for some employee unreimbursed employee expenses, but that’s par for the course.

Judge Vasquez likes Jesse’s testimony, and gives us yet again his favorite saw: “We find Mr. Linde to be honest, forthright, and credible.  See Diaz v. Commissioner, 58 T.C. 560, 564 (1972) (observing that 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).” 2017 T. C. Memo. 180, at p. 14, footnote 9.

As for la famille Vento in Third Circuit, see my blogpost “Catching Up,” 9/30/13.

LOSING YOUR “S” BY PROXY

In Uncategorized on 09/15/2017 at 16:57

My ongoing commentary on the non-admitted practicing before Tax Court took a fresh turn today. Ch J L Paige (“Iron Fist”) Marvel seems to have had a serious backslide in Nicholas G. Bolick, Docket No. 17544-17S, filed 9/15/17.

Nick is about to lose his “S” but apparently that’s no biggie as far as he’s concerned. In fact, Nick didn’t bother to respond to IRS’ motion to kick Nick’s “S” and relegate him to the regular case track.

But Brian Przystup is the one who carries the good news from Aix to Ghent.

“…the Court issued an Order To Show Cause directing petitioner to show cause why the Court should not issue an Order directing that the small tax case designation be removed in this case. … a Letter… was filed on behalf of petitioner by Brian Przystup. Upon review of that letter, it appears that petitioner has no objection to the small tax case designation being removed in this case.” Order, at p. 1.

OK, so who is Brian Przystup? A quick docket search reveals that Nick is pro se. If Brian Przystup is an attorney admitted, or about to be admitted, to practice in Tax Court, or a USTCP, why no Entry of Appearance either filed or ordered? And if Brian Pryzstup is none thereof, what is he doing filing letters or anything else?

So far as a quick Google is concerned, Brian Przystup is not a CPA, although a website bearing his name states that he has a “(S)pecialization in audit representation, bookeeping [sic] and payroll services, international and domestic corporate taxation, personal income tax specializing in real estate and aviation, overseas aviation consultation and representation, and new business corporation set ups both Federal and State nationwide.”

I suppose that translates to unenrolled preparer, but I’m open to correction.

Now it is possible there are two persons named Brian Przystup, or even more than two, amongst the 320,000,000 persons to be found within the borders of this great nation. So if I have the wrong person, I apologize.

Howbeit, if there’s no cause shown by petitioner to IRS’ OSC, and if the SNOD and petition show facially more than $50K in dispute, why not just kick the “S”?

Why led any credence to the notion that anyone, admitted or not, can appear in Tax Court?

OBLIGING, BUT “CUMBERSOME AND INVASIVE” DOESN’T ANSWER

In Uncategorized on 09/15/2017 at 15:50

Judge David Gustafson is the original Obliging Jurist. He won’t give you warm milk and cookies while his Chambers Administrator reads you his latest order, nor will he draft your motions for you, argue your case for you, or bring coffee and doughnuts to calendar call. I’ve chronicled all these in previous blogposts.

Today, he won’t let you off the hook if you claim that filing your three (count ‘em, three) unfiled years’ returns and a completed Form 433-A is “cumbersome and invasive.” He’s obliging, but won’t take your word that you can’t pay, or can only pay installments. And he won’t tell IRS to do that either.

So he bounces the petition of David Edward Lewis, 20410-16L, filed 9/15/17.

“Mr. Lewis’s petition and response quoted above contend that Appeals should have granted him an IA without requiring him to provide financial information, which he considered “cumbersome and invasive”. However, we have often held that it is not an abuse of discretion for Appeals to reject a collection alternative because the taxpayer failed to submit requested financial information. Tucker v. Commissioner, T.C. Memo. 2014-103; Huntress v. Commissioner, T.C. Memo. 2009-161. The IRS is charged with the duty to collect taxes; and when a taxpayer fails to pay his taxes after notice and demand, the IRS is authorized to collect them by levy. The CDP process creates an opportunity for a taxpayer to request the agency’s forbearance, and IRS procedures are reasonably constructed to assure that such forbearance is granted only where it is justified. Mr. Lewis’s refusal to give financial information about himself made it impossible for the IRS to determine whether (as he alleged on Form 12153) he ‘cannot pay balance’. He effectively demanded that the IRS simply accept that allegation on his say-so, but the IRS is not required to do so. Appeals did not abuse its discretion in denying a collection alternative in the absence of such financial information.” Order, at p. 5.

I must add Judge Gustafson will explain the law to you very clearly. And visit you in the slammer to try your case.

DON’T MESS WITH BIG JULIE

In Uncategorized on 09/15/2017 at 15:33

I’ve sometimes criticized His Honor Big Julie Judge Julian I Jacobs, hereinafter HHBJJJIJ, for designating too many of his orders. Not this time. Not today.

Maria J. Calica, Docket No. 304-17, filed 9/15/17, needs to read and heed, because HHBJJJIJ is letting her know she’s running out of runway and a long way from rotation.

IRS gave Maria two conference dates to hand over documents in person, and a Rule 72 Request to Produce Documents when she failed to show for either of the foregoing, but Maria did nothing.

HHBJJJIJ finds Maria’s diffidence less than helpful, and is warming up to throw Maria’s petition out of the park.

So let Maria show up at Chief Counsel’s San Diego digs with the goods.

Failing which, the wrath of HHBJJJIJ will descend upon her heavily.

“Petitioner is warned that in the event she does not fully comply with the provisions of this Order, the Court may impose sanctions pursuant to Tax Court Rule 104, including an Order that (1) the issues to which respondent’s discovery request pertain shall be taken as established in this case as set forth in (and petitioner will be prohibited from offering evidence to rebut the determinations made in) the notice of deficiency issued to petitioner, (2) the assignments of error set forth in the petition will be struck, and (3) such other and further relief as the Court deems proper.” Order, at p. 2. And it’s in bold-faced type on the website.