Attorney-at-Law

PREJUDICE? NO PREJUDICE? MOX NIX

In Uncategorized on 08/31/2018 at 16:49

That Obliging Jurist, Judge David Gustafson, does not state whether or not he has done military service, but had he served, he might have encountered this phrase, acquired during the occupation of Germany. It means “no matter.”

And Judge Gustafson properly applies the term at the end of the road (maybe) for Fighting Joe Insinga. Long-time readers of this my blog will surely recollect the long career of Fighting Joe, from his 2013 debut up to his most recent appearance in “He Loves Conundrums,” 7/ 25/18.

Fighting Joe wanted to dismiss his own petition, but demands same be “without prejudice.” Problem arising, of course, is that Fighting Joe timely petitioned 2016 blow-off of his Form 211. Since more than thirty days have elapsed since then (by a factor of around 25), he can’t possibly petition that blow-off.

He can of course drop a new Form 211, get blown off again, and petition that, da capo al fin, if ever.

So Judge Gustafson asked Fighting Joe and IRS what they want.

Here’s the answer in a designated hitter, Joseph A. Insinga, Docket No. 16575-16W, filed 8/31/18.

IRS agrees Fighting Joe can “rise and fight again.” And Fighting Joe admits he can’t fight anew over the 2016 blow-off.

Judge Gustafson says Fighting Joe admits as follows: “since (1), any appeal must be filed with this court within 30 days following the date of the claim’s formal denial, i.e., July 18, 2016, and (2), there is no savings statute permitting the withdrawal and refiling of the petition after the 30 day appeal period has lapsed, then there is no prejudice to respondent in any event, and the case should be dismissed. Petitioner agrees that the foregoing result would obtain, as the court observes, even if the court were to characterize the dismissal as ‘without prejudice.’ [Doc. 26 at l.].” Order, at p. 1.

So Judge Gustafson concludes: “Thus, neither party has pointed to any actual consequence that would result from specifying whether dismissal of this case is with or without prejudice.” Order, at p. 2.

This is of course true in any case where the SOL has run on a refiling, and no statute mandates entry of anything but dismissal. Of course, tossing a petition from a SNOD for anything but jurisdiction means automatic entry of decision for IRS for the full deficiency.

I’m hoping Fighting Joe comes back, with fresh blogfodder. I’d hate to lose a good source.

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