Attorney-at-Law

JUDICIAL BACKFLIP?

In Uncategorized on 03/09/2018 at 15:47

No, Legislative Backstab

He’s the original Mixmaster when it comes to stirring the silt, the gold medal-winning gymnast of the reverse judicial backflip; he writes like a human being, having broken his habit of dissing the partitive genitive, a feat only equaled by giving up smoking.

It’s Judge Mark V. Holmes, and today he goes hunting a rare ghoul from the Tax Court Graev, the record reopener to let in the Section 6751 Boss Hoss signoff for the Section 6651(f) nonfiling 75% fraud chop.

It’s Randy Jenkins, et al,, Docket No. 28712-11, filed 3/9/18.

Surely all y’all remember impecunious Randy and his als? What, you don’t? Then check out my blogpost “Psst – Y’Wanna Buy a Transcript Cheap?” 1/14/15. Randy is still at it. And so is IRS, moving after a mere 27 months post-trial, to wild card in the Boss Hoss for the Section 6651(f) nonfiling version of the 75% chop about to be laid upon Randy and the als.

Randy ripostes: “Mr. Gentry’s response (1) takes issue with another prior order that granted the Commissioner’s motion to amend his answer to conform his pleadings to the proof, (2) inexplicably denies the Commissioner’s explanation of I.R.C. § 6751(b), (3) argues, without any citations, that the Commissioner is ‘procedurally barred’ from reopening the case to correct any deficiency under I.R.C. § 6751(b), and (4) claims the District Court’s criminal-forfeiture order was excessive. He notably does not argue that the Commissioner made a mistake when he said in his motion that the Gentrys did not object. There just isn’t enough here for us to reconsider our order.” Order, at p. 1, footnote 1.

Rule 60(b) gives the menu for setting aside orders: “mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence; fraud; or any other reason that justifies relief.” Order, at p. 2.

The key is whether letting in the Boss Hoss changes the outcome of the case. And thereby hangs the tale.

Another monument of unaging Congressional intellect is putting the 75% fraud chop in Section 6651, albeit near the tail of the procession, the overwhelming majority of which deals with electronically-calculated stuff and pure arithmetic. And then having Section 6751(b)(2)(A) knock out the Boss Hoss altogether for anything in Section 6651, including but without in any way, directly or by implication, construction, canon or rule, limiting (as my high-priced colleagues would say) the Section 6651(f) fraud chop.

Judge Holmes notes the obvious: “We can certainly imagine a scenario where the 75% maximum penalty of I.R.C. § 6651(f) might be used as a bargaining chip to extract a taxpayer concession — most taxpayers likely favor the 25% maximum penalty under I.R.C. § 6651(a) or, even better, no penalty at all. But the plain language of I.R.C. § 6751 is what it is, we have an opinion on point, and we will follow it here.” Order, at p. 3.

The “opinion on point” is Beam, 2017 T. C. Memo. 200, filed 10/10/17, which I didn’t blog because it was CDP where Beam was trying to contest liability but blew his chance to petition the SNODs. Judge Lauber dealt with the Section 6651(f) vs Section 6751(b)(2)(A) issue with a throwaway.

“The IRS in the notice of deficiency determined and assessed ‘additions to tax’ under sections 6651(a)(2) and (f) and 6654(a).  Section 6751(b) by its terms does not apply to ‘any addition to tax under section 6651, 6654, or 6655.’  Sec. 6751(b)(2)(A).  The SO therefore was not required to verify that the additions to tax assessed against petitioner had been approved by a supervisor.  See Mohamed v. Commissioner, T.C. Memo. 2013-255 (distinguishing the fraudulent failure-to-file addition to tax under section 6651(f) from a section 6663 civil fraud penalty).” 2013 T. C. Memo. 200, at p. 14.

OK, but in Mohamed (and, mea culpa, I didn’t blog that one either) Judge Halpern, no fan of fraudsters, let off Mohamed, an admittedly bad dude, on the Section 6651(f) but nailed him for Section 6663. And Judge Halpern waxed lyrical about the Rule of Lenity. “Nevertheless, notwithstanding that lack of universal approval, since section 6651(f) imposes an addition to tax (indeed, the addition to tax is described in the heading to subsection (f) as an ‘[i]ncrease in penalty’), any ambiguity in its application is resolved by the rule of lenity.” 2013 T. C. Memo. 200, at p. 25-26.

But Judge Holmes lets the IRS RO whack the non-filing taxpayer with the 75% chop to exact a settlement, with the Boss Hoss totally out of the play, even though the IRM pt. 4.23.9.4(2) (Mar. 27, 2017), quoted by Judge Holmes at p. 2 of the order, tells IRS to get the Boss Hoss signoff in a Section 6651(f).

So there’s no need for a reopener. The Boss Hoss doesn’t change the outcome for Randy and the als, because IRS don’t need no stinkin’ Section 6751 Boss Hoss signoff when Section 6651(f) is in play, notwithstanding the inherent unfairness of this bludgeon-wielding result.

This is an ambush. I should have weighed in before now, but this is still an ambush, however bad actors Randy and the als might be.

Edited to add: Of course, if IRS had gotten the Boss Hoss timely, it doesn’t help Randy and the als. If the outcome would change, all Judge Holmes has to do is let in the Boss Hoss, and Randy and the als lose anyway. But how prescient of IRS to get it two years before the IRM required it, and after Mohamed said they don’t need it.

 

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