Attorney-at-Law

THE REOPENERS’ CHECKLIST – PART DEUX

In Uncategorized on 08/24/2018 at 17:02

Connoisseurs of the Boss Hoss Section 6751(b) sign-off for chops have had plenty to sate their appetites, as the Graev tsunami rolls on.

And that Obliging Jurist, Judge David Gustafson, is nowise loath to open other and further floodgates and add to the deluge.

Here’s Abdul M. Muhammad, Docket No. 23891-15, filed 8/24/18 (although dated 8/23/18), the follow-on to my blogpost “The Reopeners’ Checklist,” 2/7/18.

IRS has a CPAF, signed by one who claims Boss Hossery, and a declaration from one who claims to be the “immediate supervisor” of the recommender. Not the Group Manager, though.

No problem, says Judge Gustafson.

“As we have noted, the phrase ‘immediate supervisor’ does not appear on the Civil Penalty Approval Form; and instead the approving official is identified by the title ‘Group Manager’. While it is possible that a ‘Group Manager’ might not be the “immediate supervisor” of the ‘Examiner’, both the text of section 6751(b)(1) and the IRS’s instructions to its personnel in the Internal Revenue Manual (cited above) are clear and repetitive that ‘managerial’ approval must come from the ‘immediate supervisor’. It appears possible that the Commissioner could argue for a presumption that the ‘Group Manager’ is the ‘immediate supervisor’ and that the form by itself therefore suffices to meet the Commissioner’s burden of production, by invoking the ‘presumption of regularity’. See Walker v. Commissioner, T.C. Memo. 2018-22, at *19 n.6, citing United States v. Ahrens, 530 F.2d 781, 785 (8th Cir. 1976) (“’The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’ United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, * * * (1926)”).

“Since the Commissioner has not invoked the presumption of regularity (and Mr. Muhammad has not had an occasion to attempt to rebut it), and since for other reasons (i.e., Mr. Muhammad’s non-objections) we sustain the Commissioner’s position as to the admissibility and sufficiency of the form, we need not rely on the presumption of regularity in order to conclude that the Commissioner has met his burden of production as to penalty.” Order, at p. 9.

Except.

For one year, the CPAF says only five-and-ten understatement, and specifically says negligence not on the table. But the SNOD goes for negligence. In that year, the understatement doesn’t reach the five-and-ten threshold, so no penalty. For the other, Abdul is over the top, so he gets the 20% chop for that year.

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