Attorney-at-Law

Archive for April, 2018|Monthly archive page

RESIDUALS

In Uncategorized on 04/25/2018 at 16:27

No, this is not about yesteryears’ TV performers waxing comfortably stout in the wallet as their ancient epics fill the midnight streamings of the exotic entertainment providers. This is about the residual exception to hearsay in FRE 807.

Now where would one encounter this catch-all? Well, one might guess when a party is trying to wild-card an otherwise inadmissible statement into evidence, hasn’t got anything better, and the judge is leaning toward that party’s case anyway.

And in Tax Court, that has to be the Section 6751(b) Boss Hoss sign-off, the flavor de l’année post-Graev. All manner of Civil Penalty Approval Forms (CPAF) made their appearance in record reopeners, as the silt-stir predicted by Judge Holmes (see my blogpost “Stir, Baby, Stir – That Silt,” 12/20/17) shifts into overdrive with the afterburners cutting in.

Judge Ashford goes off here on Nikta Fatemeh Abdolrahim & Melvin Collins, 9650-14, filed 4/25/18. Each of them and both of them have tax problems, but Mel is looking at some Section 6663 75% fraud chops. And when they tried their cases back in 2015, neither Mel nor Nik nor IRS mentioned Section 6751(b).

But the RA who proposed chopping Mel testified on the trial, although the CPAF, allegedly duly signed by the RA’s immediate supervisor, never made it into the record.

Mel & Nik object that they never got a chance to challenge the CPAF. But they can’t tell Judge Ashford what evidence they would adduce now to challenge it.

Mel “…seemed only to question the authenticity of the Civil Penalty Approval Form, stating that he thought the form was recently signed and that there were undated handwritten notations on it. The form, however, clearly shows that it was signed on October21, 2013, several months before the January 23, 2014, notice of deficiency was issued to petitioners, and the handwritten notations (which are below the signature and date line of the form) confirm the assertion of the section 6663 penalties and the section 6651 additions to tax for 2009 and 2010. Similar to their written objection, at no point during the [Court’s phoneathon] did petitioners identify any particular testimony they would wish to elicit from either Mr. [RA] or Mr. [Boss Hoss], or suggest any other additional evidence they would like to proffer.” Order, at p. 4. (Names omitted).

So Mel & Nik got enough advance warning to satisfy Judge Ashford that they got sufficient FRE 902(11) heads-up. And though the CPAF stumbles at the FRE 803 barrier, it recovers enough to jump the FRE 807 residual fence.

Read this designated hitter, practitioner. Think carefully: what might you proffer to avoid the chops hitting Mel, when aimed at your clients?

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“YOU BETTER WORK”

In Uncategorized on 04/25/2018 at 15:26

I am quite sure that Judge David Gustafson, however obliging he may be, has never encountered RuPaul Andre Charles, or has had dealings with supermodels, whether on or off the runway. So the title of this little essay will not recall to His Honor the 1993 cavatina whence cometh said title.

Howbeit, Judge David Gustafson echoes Mr./Ms. Charles’ injunction to counsel in Johannes Lamprecht & Linda Lamprecht, Docket No. 14410-15, filed 4/25/18.

Linda’s counsel (and also Johannes’, which might spell trouble; see infra, as my expensive colleagues say) is as big a fan of summary J as I am. But his problem is as expressed hereinabove. Yesterday Judge Gustafson bounced an attempt at summary J by Linda to get out by asserting that Johannes’ fraud can’t be attributed to Linda.

“Our order of April 24, 2018 (ECF 80), observed that ‘the memorandum in support of her motion states very few facts; it cites no evidence’; and we criticized petitioner’s apparent intention to “leave to respondent (or perhaps to the Court) the task of extracting from prior filings the facts in this action that are relevant to this motion” and then the task of searching the record to see whether those alleged facts can be supported by materials in the record. Rule 121 does not permit this approach.’ We denied the motion.” Order, at p. 1.

Well, ya gotta admit the dude isn’t a quitter, whatever his skills as a pleader. And he sure checks the Tax Court website even more carefully than I do. Later the same day (yesterday), counsel shoots in another summary J motion with memorandum.

“The memorandum appears to assert that alleged fraud attributed to Mr. Lamprecht cannot be attributed to Ms. Lamprecht, but it gives no factual information whatsoever that would permit this distinction to be examined. The memorandum (at 21) cites an affidavit that appears in a prior filing to support an assertion about the IRS’s intention to issue a summons; but the memorandum generally alleges facts about issuance of the summons, summons litigation, and withdrawal of the summons, for which allegations it cites no support. Once again, petitioner seems to assume that the Court will itself derive the specific facts from somewhere in the record, or will assume facts in petitioner’s favor unless respondent disputes them. This reflects a misunderstanding of the movant’s burden under Rule 121.” Order, at pp. 1-2.

So Judge Gustafson bounces the second summary J try. And imposes a limitation I’ve seen in State court, where a too-energetic litigator (whether pro se or counsel) tries the bombardment tactic. It’s called the “Mother, may I?” rule.

“…neither petitioner shall hereafter file a motion for summary judgment without first scheduling and conducting a telephone conference with the Court and respondent.” Order, at p. 2. Pre-motion conference is a rule in a number of courts.

And counsel has yet more homework.

The main case upon which counsel relies doesn’t quite say what he says it says, at least not to Judge Gustafson, but I’ll leave that for those of you who want to read Judge Gustafson’s order and the case therein cited. You tell me.

But there’s more. What would a Tax Court case be without at least one look at the Section 6751(b) Boss Hoss sign-off?

“…Section 6751(b) makes no mention of ‘fraud’ in particular and makes no provision whatsoever affecting the running of the statute of limitations under section 6501(c)(1) as the result of ‘a false or fraudulent return’. Even if we were to accept petitioner’s novel suggestion that section 6501(c)(1) constitutes a ‘penalty’ of sorts, it would not be the sort of penalty affected by section 6751(b), which provides that ‘No penalty shall be assessed’. A statute of limitations is not ‘assessed’. … If one of the petitioners in this case has separate contentions that would relieve her of liability to the relative disadvantage of the other petitioner, then due attention should be paid to whether a conflict of interest might exist that would prevent one attorney from representing both petitioners. See Rule 24(g).” Order, at p. 2. (Emphasis by the Court).

I love summary J. But for it to work, you better work.

 

SORRY, WRONG NUMBER

In Uncategorized on 04/24/2018 at 16:18

No, not the Barbara Stanwyck-Bert Lancaster thriller of seventy years ago. This is the story of the wrong EIN on a 941, and the taxpayer’s attempt to get proper credit after the 3SOL has run.

So it’s equitable recoupment to the rescue for Emery Celli Cuti Brinckerhoff & Abady, P.C., 2018 T. C. Memo. 55, filed 4/24/18, a local law firm.

For the skinny on equitable recoupment, see my blogpost “Equitable Recoupment,” 7/8/13.

ECCBA went from LLP to PC, in the process getting a new EIN but putting the old LLP EIN on the 1Q 941 for the transition quarter. The clock had long since run when IRS dinged the PC for the “unpaid” FICA/FUTA/ITW that its predecessor had in fact paid.

PC’s counsel was a wee bit late (like about seven weeks) getting the SO all the documents, pictures, descriptions and accounts to paper the goof. The SO had already determined to drop a NOD on PC, but same had not yet issued when PC’s counsel unloaded the exculpatory material.

Judge Gale: “First, we note that the administrative record includes not only material that the settlement officer reviewed but also material that was available for his review. See Thompson v. U.S. Dept. of Labor, 885 F.2d 551, 553-556 (9th Cir. 1989); West v. Commissioner, T.C. Memo. 2010-250, slip op. at 11 n.11.  Moreover, at the time of … PC’s CDP hearing, the Internal Revenue Manual (IRM) instructed Appeals employees conducting such hearings to “[c]onsider information received after the due date for supplying information but prior to issuance of the Notice of Determination/Decision Letter.”  IRM pt. 8.22.2.2.4.11(1)(c) (Oct. 30, 2007); see Shanley v. Commissioner, T.C. Memo. 2009-17, slip op. at 15 (noting the de facto extension of time for submitting information arising from the requirement in IRM pt. 8.22.2.2.4.11(1)(c) that an Appeals employee consider information submitted before the issuance of a notice of determination).  It is undisputed that Emery PC submitted substantial information and supporting documents 11 days before the notice of determination was issued and that the settlement officer did not consider the submission. The submission included two letters with extensive attachments.  In view of the fact that these materials were available for the settlement officer’s review, and that IRM guidelines instructed him to review them, we find that the two letters and their attachments are part of the administrative record.” 2018 T. C. Memo. 55, at pp. 21-22 (Footnote omitted).

IRS was going to collect twice. LLC was too late to go back, and PC was sufficiently aligned in interest with LLC to get the benefit of the payment. IRS’ argument that the alleged overpayment arose out of two taxable events is wrong; the taxable event was payment of taxable wages, not the Commissioner’s assessment of tax. And PC used reasonable care: the right amount of tax was timely paid and reported. Only the EIN was wrong. So no late-filing or late-payment chops.

As for remand to Appeals, there’s nothing fresh for Appeals to decide. The bushelbasketful of papers that PC’s counsel put in before the NOD issued was part of the administrative record. It was introduced on the trial as well. So it was “all ye know on earth and all ye need to know,” as a much finer writer put it.

Whether PC or LLC, ECCBA wins it.

STIRRING TIMES IN THE GRAEVYARD

In Uncategorized on 04/24/2018 at 15:11

For those among my readers not yet satiated beyond repletion with the Section 6751(b) Boss Hoss sign-off, its cause and cure, Judge James S. (“Big Jim”) Halpern has yet another helping of hot-from-the-barbie chronology and commentary on this epochal silt-stir.

Here’s Horace R. Weaver & Candace M. Weaver, Docket No. 262-15S, filed 4/24/18. Horace & Candace are through with their trial, but their small-claimer lingers on.

I’ll spare all y’all the four (count ‘em, four) pages of Judge Big Jim’s prose, chronicling the trek of the Boss Hoss along Tax Court’s via dolorosa. Those practitioners expecting a trudge of their own might want to lift chronology and commentary for their memos of law.

And of course they can’t cite the source.

OFF TOPIC – THE END OF NET NEUTRALITY

In Uncategorized on 04/24/2018 at 08:37

This comment is in part political, contrary to the established policy of this my blog. So it is definitely off topic.

Given that the Congress of the United States has failed or refused to override the regulations of the Federal Communications Commission, thereby surrendering the internet to the highest bidder, it remains to be seen how much longer anyone will be able to read this my blog.

I will, however, continue to write it.

I once wrote “Je Suis Charlie,” when fellow-journalists were attacked. I now join colleagues now or formerly in Stalinist Russia (or its current embodiment, wheresoever situate) and shall write samizdat pieces, self-published and “for the desk drawer,” circulation not permitted by the authorities.

I am sure that, one day, the authorities who now try to ban us will come to the same end as those in the past.

THE 375

In Uncategorized on 04/23/2018 at 15:34

No, not another fractured opinion, with eccentric majority, concurring and dissenting; nor yet another one of the weirdest doubleplays in baseball history.

Rather, I’m tying an electronic string around my finger to remind me that the month after next is when I must fork over the $375.00 biennial fee for my continued good standing in the Bar of Our Fair State.

What happens if one blows past the registration date is illustrated in the Press Release of 4/19/18, wherein the failure of one Jude Ezeala is highlighted.

The Powers That Be even take credit cards, so one can get miles even as one re-ups for membership.

 

ELECTIONEERING

In Uncategorized on 04/23/2018 at 15:11

Many times have I stated that this is a nonpolitical Bog. So perhaps I’m stepping too near the cliché in the sand when I start the campaign for the next Chief Judge once Ch J-elect Maurice B (Watch This Space) Foley’s term has ended.

But when it comes to untangling and deciphering the convoluted, discombobulated and swangdangled papers that are launched at the Glasshouse at 400 Second Street, NW, by IRS, pro ses and automatic admittees, which unhappy task falls upon the Ch J, I nominate that Obliging Jurist, Judge David Gustafson (and I’m sure he won’t thank me for supporting him for that position).

Here’s a writing sample, Trilogy, Inc. & Subsidiaries, Docket No. 12097-16, filed 4/23/18.

Apparently IRS and the Trilogians had stiped to a bunch of facts, but one paragraph thereof was more than what IRS agreed, so IRS wants to bounce the paragraph. IRS moves for leave to file a first amended stipulation of facts.

Minor problem: “…no such amended stipulation was submitted with the motion (and evidently none exists, since the motion states that petitioners object to the motion), and the relief sought by such a motion for leave would be granted only if the motion to strike were first granted.” Order, at p. 1.

Judge Gustafson recharacterizes the motion as a motion to strike the offending paragraph.

So let the Trilogians explain why they object, being aware that in an earlier order regarding admissions, Judge Gustafson rejected a similar Trilogian objection, because the Trilogians couldn’t show how they were worse off if the paragraph were stricken now, than if it had never been made.

Any seconds for this nomination?

TRUST JUDGE HOLMES

In Uncategorized on 04/20/2018 at 15:55

When it comes to providing blogfodder, stirring silt, dissenting, concurring, engaging in grammatical duellos, inserting wild footnotes, or generally jazzing up a day otherwise bereft of better material than unsubstantiation and feeble testimony, see the title of this my blogpost.

Here’s Estate of Jeanette Ottovich, Deceased, Randy Ottovich, Harvey Ottovich, and Karen Rayl, Executors, Docket No. 25781-12L, filed 4/20/18 (and remember that date).

So why all this wind-up when the pitch is simply “gimme a status report by July 18”?

Here’s why (and why dinner with Judge Holmes is a comedy special).

“…note that today is the exact bicentennial of the last trial by battle in the English-speaking world. See the onomastically excellent for our Court Ashford v. Thornton, 1 B & Ald.459, 106 E.R. 149 (1818) (Ashford declined battle; Thornton possibly got away with murder and ended up in Baltimore); see also ‘No ‘Game of Throne” Throwdown,” Staten Island Advance (March 28, 2016) (NY Sup. Ct.) (acknowledging trial by battle still available in New York State). (The case should be better known by tax lawyers for the opinion of Lord Chief Justice Ellenborough: ‘it is our duty to pronounce the law as it is, and not as we may wish it to be’). Order, at p. 1, footnote 1.

Now that Judge Wherry has retired, long-absent whimsy has returned, brought back by Judge Holmes.

As for trial by battle still being available in New York, I don’t suggest trying it on.

SUBSTANCE VS SMELL

In Uncategorized on 04/19/2018 at 17:33

My colleague Peter Reilly CPA took his cue today from a very exalted source to “smite me with friendly rebuke” for having missed Summa Holdings, Inc., 2015 T. C. Memo. 119 filed 6/29/15. Mr Reilly has noted in his blog on forbes.com that both 1 Cr and 2 Cir are dealing with appeals, and 6 Cir has tossed IRS. The prevailing view on appeal is that economic substance is not a smell test.

I responded that when Summa came down, a variation on the DISC-stuffs-Roth gambit, I viewed it as “much of a muchness with the other blown-up DISC-to-Roth cases, like Mazzei and Ohsman.”

And the facts in Summa pre-date the codification of economic substance in the still-unrepealed Affordable Care Act.

So if the statement that “if there’s a problem Congress should fix it” is what tosses IRS, we have yet to see whether Congress did fix it in 2010.

Thanks as always to Mr Reilly.

FIIK

In Uncategorized on 04/19/2018 at 10:37

I don’t tweet, but the abbreviation that entitles this blogpost well summarizes Judge Mark V. Holmes’ Order in Gail Vento, et al., Docket No. 23537-08, filed 4/18/18. Judge Holmes is stuck with the outwash from the beaches of Our Insolvent Islands in the Sun.

For those unacquainted with 140-ese, the last three letters signify “If I Know.” The first I cannot explicate in a blogpost meant for family reading.

Again we have la famille Vento front-and-center, but only the daughters are on parade, their parents having successfully escaped the toils of the IRS. See my blogpost “It Pays To Be a Virgin,” 3/20/18.

But the issue of the daughters’ true Virginity was not disposed of, notwithstanding Judge James S (“Big Jim”) Halpern’s attempt, as to which see my blogpost “Farewell To The Virgin – Part Deux,” 9/7/16.

For between Judge Big Jim’s denial and IRS’ long-sought entry of decision in its favor, there came the Coffey break. See my blogpost thus entitled, 2/8/18.

So now the Vento daughters, having elected to dump the competent authority, maybe want to go for summary J (as Judge Holmes suggested in the last-named of my blogposts hereinabove, as my high-priced colleagues say).

Now all y’all know I just love summary J. Even if you lose the motion, you get valuable discovery, not only of your adversary but of the Judge as well.

Better yet, Coffey, with its kick-out of SOL, would end the whole Vento epic. Maybe.

Judge Holmes: “Respondent may well wish to appeal Coffey, though the appeal would likely head to a different circuit than any of these cases. Petitioners report that they may seek summary judgment. The Court would invite such a motion, but would urge both parties to become fully aware of the extreme complexities of figuring out what a fractured majority opinion means for later cases, and the possible difficulties of translating whatever the rule is in appellate courts to our Court’s rulings when we sit in conference. See http://procedurallytaxing.com/fractured-tax-court-opinions-which-opinioncontrols-and-does-the-supreme-courts-marks-decision-apply/ (And note as well that there is a case pending before the Supreme Court this term that may touch on this issue.) Order, at p. 1.

In short, chaps, exactly what did we decide in Coffey? It sounds like the weirdest doubleplay in baseball history, 5-7-4, but in Coffey five (count ‘em, five) Judges agreed in Judge Holmes’ “majority” decision, seven (count ‘em, seven) Judges concurred as to result but thought Judge Holmes and the “majority” went too far, and four (count ‘em, four) dissented altogether.

Hence the above-cited blogpost from a guest on a colleague’s site: how do you deal with a case where the ratio decidendi (that means what they were talking about, for those of you who didn’t go to a high-class law school) is all over the lot?

So, plaintively echoing Paddy Chayefsky’s words from long ago (“Whaddya wanna do, Marty?”), Judge Holmes orders the parties to “…describe any progress they have made in framing the cases for decision on summary judgment, by agreement to be bound by Coffey on appeal, or any other suggestions.” Order, at p. 2.

And respond by July 17. 2018. I’m sure Judge Holmes would love them to wait until July 17, 2118.