Attorney-at-Law

LET ‘EM IN, LET ‘EM OUT

In Uncategorized on 07/12/2018 at 03:43

This blogpost comes to you late, courtesy of The Jersey Boys’ extravagant good nature. They hosted a remarkable four-hour CPE, whereat were gathered experts from IRS, NYSDTF and NYCDOF, explaining the concurrences and deviations in their taxpayer advocacy and enforcement schemas. The program was intended for tax pros whose clients have limited English (language) proficiency.

Mine had unlimited proficiency, but a selective understanding, of the English language, when I or anyone else told them what they didn’t want to hear. I’ve said it before: every taxpayer needs two tax advisers. One to tell them what the law is, and the other to tell them what they wish the law was. They could then elect whose advice to take.

Well, today the silt stir went on apace.

First, Judge Ruwe in Paul O. Martin and Cynthia M. Montes Martin, 2018 T. C. Memo. 109, filed 7/11/18, doesn’t let IRS reopen the record to put in the Boss Hoss sign-offs. After showing conclusively that whatever petitioners introduced as evidence was woefully deficient, and that they were only entitled to a couple bucks (hi, Judge Holmes) over the pittance IRS allowed them in the SNOD, Judge Ruwe slammed the door on IRS’ reopener motion. And he doesn’t tell us why.

“Compliance with section 6751(b)(1) is part of the Commissioner’s burden of production for those penalties to which the section applies. See Graev v. Commissioner, 149 T.C. , (slip op. at 13-14) (Dec. 20, 2017), supplementing and overruling in part 147 T.C. 460 (2016). Section 6751(b)(1) provides, subject to certain exceptions, that ‘no penalty 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 or such higher level official as the Secretary may designate.’

“Respondent concedes that he must demonstrate compliance with section 6751(b)(1) to meet his burden of production. The record does not contain any evidence that respondent complied with section 6751(b)(1). Accordingly, respondent did not meet the burden of production, and petitioners are not liable for the accuracy-related penalty for 2012, 2013, or 2014.” 2018 T. C. Memo. 109, at p. 20. (Citation omitted).

To the contrary, The Great Concurrer and Master Silt Stirrer, Judge Mark V. Holmes, lets in some Boss Hosses and keeps out others in Plentywood Drug Inc., et al., Docket No. 17753-16, filed 7/11/18.

As Plentywood is a Corp (whether C or S not stated, but doesn’t matter), Dynamo teaches us that Section 6751(b) doesn’t apply to corporations. See my blogpost “Howdy, Partner – Part Deux,” 5/7/18.

But the als are human people.

So IRS needs the Boss Hoss sign-offs to chop them. Except there was a question whether the als disputed their chops.

IRS claims the als’ attorney said they weren’t going to fight their chops.

“We reviewed the record in these cases and found that the individual petitioners did in fact dispute the penalties in their petitions, which is important because the Commissioner has the burden of production for showing that he complied with § 6751 in determining penalties against individual petitioners.” Order, at p. 1. (Citation and footnote omitted, but it’s Graev II and Dynamo.)

So, als, asks Judge Holmes, is you is or is you ain’t?

“Petitioners recently filed their response: They say that they already conceded penalties on some issues but that they did not want to concede penalties on others. What petitioners fail to do, however, is object to the Commissioner’s motion or give us a single reason why we shouldn’t grant it.” Order, at p. 2.

So like King Solomon, Judge Holmes cuts the Boss Hosses in twain. No reopener for Plentywood, the Corp, as Boss Hoss not needed for corporate chops; but reopener granted for the als, as the sign-offs are needed and the als haven’t objected.

I was pleased to be able to thank Frank Agostino, Esq., personally for Graev, the blogger’s delight. It’s a gift that just keeps on giving.

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