Attorney-at-Law

MORE IS LESS

In Uncategorized on 09/17/2018 at 15:38

Mies van der Rohe might wince if he knew how his famous dictum is being used and misused. Today that Obliging Jurist, Judge David Gustafson, shows when there’s more, there’s truly little enough, so no summary J for IRS.

Northside Carting, Inc., Docket No. 1117-18L, filed 9/17/18, wanted an OIC, or maybe an IA, but in any event the SO said he hadn’t sufficient information from Northside and its “power of attorney.”

Once again I point out that a power of attorney is either a piece of paper or a concatenation of electrons, which appoints and empowers a “Representative” or “Agent” to act for the grantor of said power of attorney.

The SO closed out the file, and ordered the NFTL sustained.

Now this would be enough, generally (ah, generally, my favorite tax word).

Except over the next six weeks or so Northside’s representative sent in two more batches of information, and the SO requested more. Finally, the SO gave the representative a week to respond to the last request, but the rest was silence.

And maybe Northside wasn’t current with its filings. The NOD says so, but not the summary J motion.

So Judge David Gustafson can’t really oblige IRS with summary J.

“Thus, Northside provided more information to Appeals on August 7 and August 17, 2017. Of course, ‘more information’ might not have been enough information to warrant a collection alternative. But we cannot tell. It seems that neither Appeals’ Notice of Determination nor the Commissioner’s motion for summary judgment itemizes what information was requested but never provided. We are unable to review Appeals’ judgment that Northside failed to provide relevant information.

“The SO’s ‘Case Activity Record Print’ that the Commissioner filed as Exhibit B does provide somewhat more detail about the SO’s correspondence with Mr. [Representative]. But when we study that document to learn more, we think we see an intention to sustain the collection action because Northside was ‘Not Current with filing or paying requirements’ (Ex. B at 12/11/2017)—a point also made in the Notice of Determination–but the motion for summary judgment is silent on that point.” Order, at p. 3. (Emphasis by the Court; mame omitted).

Of course, this is a “record rule” case, as Northside is Golsenized to 1 Cir., and the record rules there.

But Judge Gustafson isn’t through.

“We therefore follow that rule in this case, and under that rule the parties might proceed simply by offering into evidence the agency-level administrative record. It may be that the administrative record viewed in its entirety (or considered with attention to details to which the Commissioner’s motion did not point us) will enable us to review Appeals’ judgment that Northside failed to provide relevant information. But if instead ‘the existing administrative record [is] inadequate to permit effective judicial review,’ then we might conclude that a remand for a supplemental hearing would be appropriate, or might conclude simply that the Notice of Determination cannot be sustained.” Order, at p. 3. (Citation omitted).

But Northside shouldn’t skip the review session. “Northside is warned that if it fails to appear on November 5, 2018, it should expect that its case may be dismissed for failure to properly prosecute, under Rule 123(b).” Order, at p. 4.

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