In Uncategorized on 01/04/2018 at 17:23

Although a great blizzard has hit The City That L’Enfant Built, I doubt Judge Holmes has reflected thereon as did James Joyce’s Gabe Conroy. “His soul swooned slowly as he heard the snow falling faintly through the universe and faintly falling, like the descent of their last end, upon all the living and the dead.”

But the dead are front-and-center, as they confront the Graev in Estate of Michael J. Jackson, Deceased, John G. Branca, Co-Executor and John McClain, Co-Executor, Docket No. 17152-13, filed 1/4/18.

You remember the Great Silt Stir, when ex-Ch J Michael B (“Iron Mike”) Thornton sustained Larry and Lorna Graev’s chops, while opening the floodgates for everyone else? No? It was just last year. See my blogpost “Stir, Baby, Stir – That Silt,” 12/20/17.”

So the deluge foreseen by Judge Holmes followed forthwith, with Judge Holmes nowise loth to flood the zone with the rest of the Glasshouse Gang.

Now apparently chops rained on the ex’rs in their fiduciary capacity, but did the right Boss Hoss put his/her imprimatur thereon? And does it matter when the chopee isn’t a living person? Section 7491(c) places the burden of production on IRS as regards chops for an individual, even though Section 7701(a)(1) makes an estate a person.

“The parties may wish to brief the issue of whether the Court’s ruling in Graev III that § 6751(b) compliance is part of the Commissioner’s burden of production extends to cases where the petitioner is a taxpayer but is not an individual. They should note that the Court traditionally applies § 7491(c) in estate tax cases, see, e.g., Estate of Richmond v. Commissioner, 107 T.C.M. 1135, 1145- 46 (2014) (Commissioner bears burden of production on § 6662 penalty); Estate of Giovacchini v. Commissioner, 105 T.C.M. 1179, 1186 (2013) (Commissioner has burden of production on penalties), though we’ve never said why, see, e.g., Estate of Rector v. Commissioner, 94 T.C.M. 567, 574 n.11 (2007) (not deciding if § 7491(c) applies to estate because record sufficient to meet any burden of production); Estate of Hartsell v. Commissioner, 88 T.C.M. 267, 269 n.6 (2004) (only assuming § 7491(c) applies because Commissioner met any burden of production).” Order, at p. 2.

So since the trial is over but their briefs not yet due, IRS and the ex’rs should tell all therein.

Stay tuned.





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