In Uncategorized on 05/04/2018 at 15:15

I don’t get upset about cases that somebody else loses. I may observe from a comfortable distance that an attorney or a pro se (or even a judge) got it wrong. Sometimes my remarks might even show a slight acerbic (not to say sardonic) quality.

But this one is just bad. And I’m not faulting Judge Colvin. Tax Court Judges must follow the law as it is, not the law as they might wish it to be.

But this is not a great start to a weekend.

Robert R. Whiteley, Docket No. 22628-16SL, filed 5/4/18, made a very minor mistake on the 1040 wherein he claimed HOH, a dependent daughter and the education credit in respect of said daughter.

Judge Colvin: “…petitioner correctly reported his daughter’s Social Security number, as he had done in prior years. However, instead of spelling out his daughter’s two middle names as he had done in those years, on his…return petitioner used his daughter’s two middle initials. Because of that difference (abbreviating his daughter’s middle names) respondent disallowed the head of household filing status and disallowed the deduction for a personal exemption for his daughter and the claimed education tax credit.” Order, at p. 1.

OK, so issue a SNOD and let RR and IRS counsel settle it with a phonecall.

Oh no. “The Internal Revenue Service (IRS) notified petitioner that it concluded that petitioner had made mathematical and clerical errors on his 2011 return. What the IRS treated as math and clerical errors included denial of the three tax items discussed above (filing status, a deduction for a personal exemption, and an education credit, all relating to petitioner’s daughter) and also petitioner’s calculation of taxable Social Security benefits and his total income. The IRS recalculated the tax due based on these changes and assessed the tax due pursuant to section 6213(b) without issuing a notice of deficiency. According to Chief Counsel Notice CC-2006-019 (Aug. 18, 2006), petitioner was not provided an opportunity to dispute respondent’s assertion of his tax liability for 2011.” Order, at pp. 1-2 (footnotes omitted).

OK, so when RR gets the NFTL or NITL, he can duke it out at Appeals on a Letter 12153, or if Appeals sustains this abomination and unloads a NOD, petition.

Appeals does and RR does.

Except IRS grabs a refund from another year, says RR owes nothing, and Tax Court has no jurisdiction, Greene-Thepadi and all that, y’know.

Judge Colvin sustains. IRS can grab refunds from one year to satisfy liabilities for another year, and if no tax due (and the 4340 says there isn’t), tough luck, RR. Poor l’il ol’ Tax Court got no jurisdiction to order refunds.

Except. There was no math error. There was at most a minor typographical error, and if you call it a clerical error to avoid working you get the comments I am making here. IRS had all the information they needed to compute RR’s liability, and he manifestly filed a return. And IRS took the path of least resistance.

This is beyond nonsense. If this is what Congress and IRS think is a proper resolution, I am without language to describe this “resolution” otherwise than with language I have but rarely used when not wearing combat boots.

Word to Nina E. (“The Big O”) Olson and her Taxpayer Advocate squad: This one’s for you.

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