In Uncategorized on 08/23/2018 at 17:05

Louis S. Shuman and Sandra Shuman, 2018 T. C. Memo. 136, filed 8/23/18, are arguing about credit elects (overpayments from prior years to be applied to current year), but their loss on the sale of one residence is not deductible, nor is the unasserted claim against their previous tax advisers.

The case is interesting only because of the Graev implications (sorry, guys) that arise when IRS wants yet again to open the record to wild-card in the Boss Hoss sign-off for the chops.

IRS trots in a declaration and a CPAF (Civil Penalty Approval Form). The declaration says that this is the form, the signature is that of the Boss Hoss, and that the Boss Hoss signed “on or about” a certain date.

But pro se Louis (sorry about the spelling, guy), although a dentist, shows real lawyerly acumen. Though the usual hearsay objection fails to surmount the FRE res gestæ existence rule, those rules don’t authenticate the contents.

The Boss Hoss signed the CPAF, right enough, but the date is blank. And the declaration is hearsay on that score.

Judge Gale: “Respondent has not identified an exception to the hearsay rule that would permit us to admit the declaration for the purpose of establishing the date that written supervisory approval was obtained in these cases. Moreover, despite petitioners’ having raised the issue of the missing date some months ago, respondent has not requested further trial proceedings or proposed any other means of bolstering the penalty approval form, which is defective on its face.  Under these circumstances, we decline to exercise our discretion by ordering, sua sponte, further trial proceedings.” 2018 T. C. Memo. 135, at p. 28 (Citation omitted).

Whoops! Practitioner, check out every piece of paper.


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