The  three T. C. Memos cases today, 8/29/18, are a trio of no-substantiations. Judge Judy and others of her ilk have much to answer for; people think they can go to court with no paper, no witnesses, and a sob story. Well, they can, but if they have burden of proof they’re sunk.

So I’ll return to a theme from yesteryear. See my blogpost “Take the Hint,” 11/25/15. Do you take a remand to Appeals or don’t you?

Back in 2015, I said “But when a Judge suggests you might think about a remand, do think, and think twice. You might reject the suggestion if you don’t want to give Appeals a second chance to sink your client. But you might take the hint if you think you have enough good stuff to win at Appeals.”

But there are other choices, especially if you’re IRS’ counsel.

Here’s STJ Robert N Armen, “The Judge With a Heart,” dropping the hint to IRS in Michael Edward Kelly, Docket No. 26941-17SL, filed 8/29/18.

Mike is fighting a NFTL. When Mike got the NFTL, he went to Appeals. He claimed he couldn’t pay, which STJ Armen takes to be a request for currently-not-collectible, or CNC, status. Appeals proffers the Case Activity Record of the now-retired SO who bounced Mike’s CDP, which “…states that documents requested by him were never received and that petitioner never responded to the settlement officer’s letters other than in a single voice-mail message saying that he had unintentionally missed the administrative hearing and would like the settlement officer to call him back.” Order, at p. 2.

Mike “passionately” ripostes to IRS’ motion for summary J based on the foregoing with “…a very different scenario, alleging repeated efforts to contact IRS personnel and the furnishing of pertinent documentation.” Order, at p. 2.

No summary J, obviously. Whether Mike replied to the now-retired SO, or tried, and how often and with what, and what the now-retired SO did or didn’t do, are material facts. And the case is on for trial next month.

But does IRS really want a trial?

STJ Armen: “Rather than let this case proceed to trial at that time and place, the parties might care to consider whether it would be mutually advantageous if this case were to be remanded by the Court to respondent’s Appeals Office for a supplemental administrative hearing to be conducted by a settlement officer in an office proximate to petitioner’s residence…in order to consider petitioner’s request for a collection alternative. After all, if this case were to be tried, and if the Court were to conclude that petitioner strove, but to no avail, to communicate with the settlement officer during the administrative process and to provide requested documentation, then the remedy might very well be a remand for a supplemental administrative hearing. Given that the original settlement officer is now retired and may therefore not be readily available to respondent as a witness at a trial, and further given the fact that the present case involves a lien and not a levy, thereby assuring the Government of its priority over other possible creditors, the filing of a motion to remand, coupled with a motion for continuance of trial…would appear to present little (if any) downside to respondent and might very well lead to the disposition of this case on a basis that is mutually agreeable to the parties.” Order, at p. 3. (Emphasis by the Court.)

Something to think about.