In Uncategorized on 05/24/2018 at 16:09

Y’all will remember the excise tax on tanning parlors that featured in the much-contemned-but-still-unrepealed Affordable Care Act. The tannery operators collected same from the tanned, and were required to remit to the Federales posthaste. Failing the which, the tannery’s responsibles got their hides tanned with TFRPs.

Well, what is a penalty of any kind without a Boss Hoss Section 6751(b) sign-off?

I’ll tell you: it’s an occasion for a silt-stir by none other than that Master Silt Stirrer, Great Dissenter/Concurrer, and Old China Hand, Judge Mark V Holmes.

Judge Holmes is back at the Graev in a designated hitter, Daniel James Humiston, 25787-16L, filed 5/24/18.

DJ’s tannery went mechulah (please pardon arcane technical term from the old Mesopotamian) and the bankruptcy liquidation hadn’t yet occurred, when IRS slugged DJ with the TFRPs. DJ claims he told the SO at Appeals that the cash on hand in the now defunct tannery would pay off some of the excise taxes, so he never handed over personal info.

The SO checked out the Forms 4340 for the relevant period.

In support of its motion for summary J IRS handed up the “…Forms 4340, Certificates of Assessments, Payments, and Other Specified Matters, for each tax period. This would ordinarily be enough for us to move past the verification requirement of § 6330(c)(1) and (3)(A). See, e.g., Dinino v. Commissioner, 98 T.C.M. 559, 564 (2009) (‘The appeals officer would have seen th[e] entries [on the Forms 4340] when he consulted [IRS] records before the notice of determination was issued’). But the parts of the administrative record that accompany the Commissioner’s motion say nothing about the SO verifying that the Commissioner complied with § 6751(b)(1) when he assessed the TFRPs against Humiston — the SO doesn’t say anything about the requirement in the notice of determination, and there are no Forms 4183 attached to his declaration. Cf Blackburn v. Commissioner, 150 T.C. __, __ (slip op. at 9) (Apr. 5, 2018). And the Forms 4340 themselves don’t give any information about the Commissioner’s compliance (or lack thereof) with § 6751(b)(1).” Order, at p. 3.

Remember Scott Blackburn? No? Then dig my blogpost “Robosigner? – Part Deux,” 4/5/18. Scott was involved in FICA-FUTA-ITW TFRPs, but what’s the diff?

With pardonable understatement, Judge Holmes’ll tell ya.

“Our Court’s spent a lot of time lately thinking about I.R.C. § 6751(b)(1), which says that “[n]o penalty under [the Code] shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor of the individual making such determination.” Indeed, the Second Circuit — to which this case is presumably appealable — told us last year that ‘the written-approval requirement of § 6751(b)(1) is appropriately viewed as an element of a penalty claim.’ Chai v. Commissioner, 851 F.3d 190, 222 (2d Cir. 2017), aff’g inpart, rev’g inpart 109 T.C.M. 1206 (2015). We’re dealing here with a liability that consists only of penalties — TFRPs under § 6672(a) — so we don’t immediately see why § 6751(b)(1)’s penalty-approval requirement wouldn’t apply, and the Commissioner hasn’t argued that it doesn’t.” Order, at p.3 (Footnote omitted, but read it; Judge Holmes is at it again, jousting with the “automatically calculated by electronic means” gambit.)

It’s true DJ didn’t raise the Boss Hoss sign-off opposing summary J, but he’s pro se (of course), and can raise the issue on the trial (nudge nudge, wink wink).

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