In Uncategorized on 01/11/2018 at 18:21

Only one item in it, to continue my “toolbox” series, Vincent M. Lorusso, 2018 T. C. Memo. 3, filed 1/11/18. That’s Vincent M. Lorusso, Esq., PA criminal lawyer, but he’s here over a CDP in which he did not participate.

Nevertheless, LoRusso timely petitioned the NOD. IRS riposted with a Section 6673(a)(1) delay of the game proposed chop.

If this seems a wee bit extreme (usually the Judge warns the petitioner who plays the clown), note the following.

Lorusso moves to dismiss.

Judge Vasquez: “Since 2015 petitioner has initiated four distinct cases with similar factual backgrounds. Two of these cases were decided in favor of respondent on his motions for summary judgment. The other two cases include the instant case and another pending case not presently before us; in both of these cases, respondent filed motions for summary judgment and petitioner filed motions to dismiss.” 2018 T. C. Memo. 3, at p. 4.

Sounds like a good move. Wagner is there to make dismissal of a petition from a NOD a no-hurt option. IRS will levy anyway, Just don’t play this card more than twice.

“Petitioner’s history of litigation with the Court may merit the imposition of a penalty under section 6673. However, respondent has not moved for such penalties against petitioner in the past, nor has the Court issued petitioner a warning regarding these penalties. Therefore, we decline to impose a section 6673 penalty against him at this time.” 2018 T. C. Memo. 3, at p. 4.

OK, Lorusso squeaks away, with the usual admonition to straighten up and fly right..

But is his petition dismissed? Why do I ask? Wagner is a sure-fire out, no?

Not quite.

When it comes to dismissals generally, the question is whether the nonmovant will be prejudiced. In a classic Wagner, no, IRS lost time, nothing more. But Tax Court has imported, via Rule 1(b), FRCP 41(a)(2), and asks.

Here, IRS would be prejudiced if its Section 6673 chop was still in play, but it isn’t. So Lorusso, you’re dismissed; go and sin no more.

Warning to others trying to play this gambit: YMMV: in your case IRS may be prejudiced.


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