In Uncategorized on 05/14/2018 at 16:07

I had thought Judge Mark V. Holmes was cured of disrespecting the partitive genitive. Unhappily, I found this in RB-1 Investment Partners, Eric Reinhart, Tax Matters Partner, 2018 T. C. Memo. 64, filed 5/14/18: “Doug had already left the Navy a couple years earlier….” 2018 T. C. Memo. 64, at p. 3.

As for the substance of the case, it was a Jenkens & Gilchrist son-of-BOSS, without a Section 6751(b) Boss Hoss sign-off but with a 40% substantial undervaluation chop. Plus the usual Section 6662(a) accuracy chop.

The accuracy chop was all that was left to argue about.

Judge Holmes tells a story in a footnote.

“The Commissioner didn’t produce any evidence of his compliance with section 6751(b)(1), see Graev v. Commissioner, 149 T.C.      ,       (slip op. at 1315) (Dec. 20, 2017), supplementing 147 T.C. 460 (2016), which would normally result in a holding that the Commissioner failed to meet his burden of production on the penalty, see, e.g., Ford v. Commissioner, T.C. Memo. 2018-8, at *6.  We recently held, however, that the Commissioner does not bear the burden of production on penalties in TEFRA partnership-level proceedings.  Dynamo Holdings Ltd. P’ship v. Commissioner, 150 T.C.      ,       (slip op. at 21) (May 7, 2018).  That means that the burden of production on this issue fell on Eric, who could have raised lack of compliance with section 6751(b)(1) as a defense to penalties, see id. at  ____    (slip op. at 21-22), but who failed to do that at any stage. The defense is therefore waived.  Id. (citing Petzoldt v. Commissioner, 92 T.C. 661, 683 (1989), and Rule 151).” 2018 T. C. Memo. 64, at p. 19, footnote 15.

For Dynamo and its impact on Graev, see my blogpost “Howdy Partner – Part Deux,” 5/7/18.

The latest statistics I can find show I average about 400 words per blogpost. This means I get whatever info I have into as few words as possible, so the harried practitioner can decide if s/he needs to read any opinion or order before reaching for the hard-earned Grey Goose and Noilly Prat (olive, twist or onion at your discretion).

But if Judge Holmes reopens the war on the partitive genitive, I may have to put back the honorifics.

And that would hurt my average.

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