Judge James S. (“Big Jim”) Halpern casts a wide net when dealing with the wrinkled skin of our tax law. And when a new legal planet swims into his ken, he invites others to share, and bids the parties involved look at each other with a wild surmise. Thus today’s designated hitter, Brian H. McClane, Docket No. 20317-13K, filed 3/13/18.

But Judge Big Jim is a fair man. “We recognize that petitioner, as a pro se taxpayer, may have difficulty addressing the legal questions that we would like covered by the parties’ supplemental briefs. And the amount at stake does not appear to justify the hiring of private counsel. Petitioner may be able to obtain assistance in preparing his supplemental brief on a pro bono basis from a low income taxpayer clinic (LITC) in his locale.” Order, at p. 5. And he gives Brian H. a list of the local LITCs.

Clearly, the supplemental briefing Judge Big Jim wants is not for amateurs.

To begin with, Brian H. claims he never got the SNOD for the year at issue, but since IRS allows him greater deductions than he claimed and agrees he overpaid, it’s all moot except for Brian H.’s claim he should get a refund. And even though not pled, the issue is deemed tried by consent (Rule 41(b)(1))

Unfortunately, the year at issue was nine years ago.

Notwithstanding anything otherwise or to the contrary contained in the foregoing sentence (as my high-priced colleagues would say), Judge Big Jim delivers himself of the following.

“We view section 6330(d)(1) as the principal (if not sole) basis for our jurisdiction in this case. That section allows us to consider a taxpayer’s appeal of a determination made by the Internal Revenue Service Appeals office. Our authority under that section would thus appear to be limited to matters within the scope of Appeals’ determination. We thus can decline to uphold Appeals’ determination to sustain the NFTL in regard to petitioner’s 2008 taxable year. Whether section 6330(d)(1) allows us to go further and determine that respondent’s Appeals office erred in not ordering a refund to petitioner of any portion of the tax he previously paid for that year may turn on whether Appeals had the authority to take that action. Appeals cannot have erred in failing to do something that it lacked the authority to do. Thus, we expect petitioner to advise us of whether he views our ability to order the refund he seeks as within the jurisdiction granted to us by section 6330(d)(1) and, if so, what analysis or authorities support that view. If respondent’s position is that our jurisdiction under section 6330(d)(1) does not allow us to order the refund of an overpayment because his Appeals office had no authority to do so, we expect him to provide us with relevant documentation regarding the scope of Appeals’ authority.” Order, at pp. 2-3.

Of course Tax Court can order a refund in a deficiency case, if the strictures of Section 6511(a) are met. But this isn’t a deficiency case, and nine years is a wee bit too long for a Section 6511(a) lookback.

“Does petitioner claim that respondent’s issuance of the NFTL, or any other event that occurred as part of this CDP case, suspended the running of the period of limitations provided in section 6511(a)? If so, on what authority does petitioner rely? Alternatively, does petitioner claim that he took action prior to the expiration of the period of limitations to preserve his ability to claim a refund of any overpayment he might have made for 2008? If so, what was that action? If respondent’s issuance of the NFTL did not affect petitioner’s ability to pursue a refund claim that has since become time-barred, he has no apparent grounds for complaint about our inability to entertain a belated refund claim as part of the present case.” Order, at p. 5.

So IRS may have started collection, and put the year at issue in play, but does that toll SOL? What says IRS?

There’s more, but I will let y’all read it.

I can only commend Judge Big Jim for sending Brian H. to a LITC. I doubt Brian H. is prepared to deal with Judge Big Jim’s conundrums on his own.