Attorney-at-Law

Archive for September, 2018|Monthly archive page

YOUTH WANTS TO KNOW – REDIVIVUS

In Uncategorized on 09/12/2018 at 17:52

I have been looking for a definitive answer, if such there be, why Section 6673 chops should or should not be imposed in the case of the multi-year petition, where for the greatest part there was neither SNOD nor NOD. See my blogpost “I’m Beginning to See the Light,” 4/19/18.

Today we have two orders, both of which may yield an answer.

George Gasich, Docket No. 12943-18, filed 9/12/18, petitions “…the taxable years 2000 through 2016….” Order, at p. 1.

IRS responds, moving to toss 2000, and 2006 through 2016. “As to 2001 through 2005, however, the motion represented that research and jurisdictional discovery remained ongoing.” Order, at p. 1.  OK, if that were all I wouldn’t be writing this blogpost, but IRS also moved for a Section 6673 frivolity chop.

Ch J Maurice B (“Mighty Mo”) Foley tells IRS to get back to him with the results of their research and discovery, and on what basis they want to dispose of the missing years. I hope Ch J Mighty Mo will give us reasons why George gets the chop…or not.

And if George’s case is resolved without an answer, perhaps Ch J Mighty Mo can tell us in Paula Jeanne McAdam, Docket No. 12536-18, filed 9/12/18.

I’ve got to insert the whole story here, because the facts will determine the outcome, maybe.

PJ petitions 2000 through 2017. IRS moves to toss, and here’s the rundown.

“(1) no notice of deficiency or notice of determination was issued to petitioner for taxable years 2000 through 2002, and 2009 through 2017, that would permit petitioner to invoke the Court’s jurisdiction; and (2) the petition in this case was not filed timely as to the April 3, 2015, deficiency notice issued to petitioner for taxable years 2003 through 2008, nor was any other notice of determination issued to petitioner for taxable years 2003 through 2008 that would confer jurisdiction upon the Court. As also indicated in respondent’s motion to dismiss: (1) on June 15, 2015, petitioner filed a Tax Court petition commencing the redetermination case at docket No. 15503-15 challenging the notice of deficiency dated April 3, 2015, issued to her for taxable years 2003 through 2008; (2) petitioner was represented by counsel in that case at docket No. 15503-15; (3) on August 25, 2016, the Court entered a stipulated decision in docket No. 15503-15; and (4) that decision at docket No. 15503-15 is final [see I.R.C. secs. 7481(a)(1), 7483. In his motion respondent further requests that the Court impose an I.R.C. section 6673 penalty. Section 6673(a)(1) authorizes the Court to require a taxpayer to pay to the United States a penalty not in excess of $25,000 whenever it appears that proceedings have been instituted or maintained by the taxpayer primarily for delay or that the position of the taxpayer in such proceeding is frivolous or groundless.” Order, at p. 1. (Footnote omitted.)

OK, if PJ had a chance to contest the six (count  ‘em, six) years for which she got a SNOD, and settled the whole thing two years ago, that’s final and can’t be disturbed. If that’s the basis for the Section 6673, OK, but what about the rest?

PJ responds to IRS’ motion with a letter, wherein she doesn’t dispute the jurisdictional facts. “However, petitioner does question respondent’s requesting the Court to impose the penalty, asking how the Court can impose a penalty upon petitioner here “without jurisdiction being established” in the present action at docket No. 12536-18.” Order, at p. 2.

Ch J Mighty Mo does toss PJ’s petition, but doesn’t give IRS the Section 6673 chop. But he does warn PJ “…that the Court will consider imposing such a penalty in future cases commenced by petitioner seeking similar relief under similar circumstances.” Order, at p. 2.

One free bite, I guess. But must one have actually litigated or settled a case during the period petitioned to risk the Section 6673 chop? How if one never contested, but IRS liened or levied, with or without a petitioned CDP?

I’d really like to know.

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BASIS FOR HUMORISTS

In Uncategorized on 09/11/2018 at 18:07

He’s already given me the stuffing for  “Basis for Dummies,” 11/24/11, and “The Sum of Its Parts,” 3/12/12, so who better to deal with basis in all its permutations, variations, combinations and tergiversations, than The Great Dissenter/Concurrer, a/k/a The Judge Who Writes like a Human Being, Master Silt Stirrer and Old China Hand? Of course I mean Judge Mark V Holmes.

Today he has a designated hitter, Donald Bailey & Sandra M. Bailey, et al., Docket No, 5477-14, filed 9/11/12. And the subject is basis. Carryover type.

Don & Sandra bought 10% of the stock of a Sub S formed by two dudes with a software program. The dudes had the software in an LLC, and swapped the software for the Sub S stock. Everyone agrees that the software, being self-created, had a basis of zero in the hands of the dudes when they transferred same to Sub S, and they only got Sub S stock in exchange.

Sounds like the plainest vanilla Section 351 tax-free incorporation. We did a lot of those years ago.

“The Baileys, as shareholders of the S corporation, argue that it got a stepped-up basis in the software. The Baileys have filed two motions for partial summary judgment and ask for oral arguments on their first motion.

“Both parties have fully briefed their arguments, so oral arguments aren’t necessary to decide the Baileys’ partial summary-judgment motions.” Order, at p. 2.

Now here’s where it gets cute.

“After the transaction, the corporation increased its basis in the software from zero to around $9.7 million and began to depreciate it. This enabled the company to offset its cash income and therefore the amount of passthrough income taxable to its shareholders, including the Baileys. The Commissioner says the basis of the software should have stayed at zero. This disagreement is important — it’s the difference between the Baileys’ having taxable income or not.” Order, at p. 2.

Don & Sandra get a brief lesson in basis from Judge Holmes.

“The Code tells us that when there is no boot in a section 351 transfer, the basis of the stock the shareholders get must be the same as the property exchanged. I.R.C. § 358(a). The corporation gets a carryover basis in the property it receives too. I.R.C. § 362. So the corporation’s basis in the software should have been the same as it was before the transaction — zero. The Baileys point to Revenue Ruling 85-164, but this ruling doesn’t help them. This ruling tells taxpayers how to allocate basis among different stocks and securities received in exchange for property contributed to a corporation, not how to increase the basis of that property to its fair market value. That means the Baileys haven’t shown they are entitled to judgment as a matter of law here.” Order, at p. 2.

But Don & Sandra aren’t done yet. They attach new Forms 1040 to their motion, but all a 1040 is, is a taxpayer’s assertion (and maybe an admission). They’re not proofs of their correct tax.

Don & Sandra lose both motions.

But ya gotta like their never-give-up attitude. They ask for Section 7430 admins and legals. No, says Judge Holmes, you haven’t prevailed, “at least not at this stage.” Order, at p. 2.

Judge, on this record, I wouldn’t bet the ranch that they prevail at any stage.

“IS THERE, FOR HONEST POVERTY” – PART DEUX

In Uncategorized on 09/11/2018 at 17:36

Unhappily, STJ Daniel A (“Yuda”) Guy has a negative answer for poor Jason J. Gartlan, 2018 T. C. Sum. Op. 42, filed 9/11/18.

There isn’t, for honest poverty. That is, there isn’t a Premium Tax Credit (Section 36B) for JJ, even though he’s below 100% of the Federal poverty limit. So the much-contemned Affordable Care Act doesn’t afford JJ anything but a $3K deficiency, even though it’s uncontroverted that JJ’s MAGI was minus $799.

But doesn’t the special rule help JJ, notwithstanding that he fails the 100% – 400% poverty line cut? Is there never an exception; this is tax, after all.

Of course there’s an exception. Reg. Section 1.36B-2(b)(6)(i) says if the exchange to which JJ applies for coverage determines that he could make the 100% cut (and stay below the 400% cut), he enrolls in an approved plan for one month and the premium gets paid for one month, the premiums are creditable.

Except.

“Section 1.36B-2(b)(6)(i)(B), Income Tax Regs., requires that, at the time that petitioner enrolled in a health insurance plan, the insurance exchange estimated that his household income would be at least 100%, but not more than 400%, of the FPL [Federal Poverty Level] for the taxable year.  In addition, section 1.36B-2(b)(6)(i)(C), Income Tax Regs., requires that advance premium assistance payments were authorized and paid on petitioner’s behalf during the year in issue.  There is no dispute that neither of these requirements was met in this case.  Consequently, petitioner does not qualify under the special rule for taxpayers with household income below 100% of the FPL.” 2018 T. C. Sum. Op. 42, at p. 7.

JJ says the ACA was designed to help the poverty-stricken like him, and the only problem was that the exchange, his home State (DE), and the insurance company weren’t on speaking terms, a situation over which JJ had no control.

“While we are not unsympathetic to petitioner’s situation, we are bound by the statute as written and the accompanying regulations when consistent therewith. The controlling facts are that petitioner’s MAGI was below eligible levels and he does not qualify for the exception set forth in section 1.36B-2(b)(6)(i), Income Tax Regs.  To the extent that petitioner believes that he has suffered an injustice due to a flaw in the controlling statutory provisions, his recourse may be to seek a legislative remedy.” 2018 T. C. Sum. Op. 42, at p. 8.

As (A) this is a non-political blog, and (B) this is a blog meant for family audiences, I cannot express my opinion as to the chance of a legislative remedy. So all I can say to the question posed by Scotland’s Greatest, is “No, there isn’t, for honest poverty.”

 

SOL ON SOL – REDUX

In Uncategorized on 09/11/2018 at 17:00

When redetermining underlying liability in a CDP (e.g., SNOD not sent to last known address, so no prior opportunity to contest), Tax Court has always tried to dodge determining a refund. The lookbacks in Section 6511 are the limiting factors. Today, despite the efforts of the University of the District of Columbia David A. Clarke School of Law Tax Clinic, there’s no refund for Brian H. McLane, 2018 T. C. Memo. 149, filed 9/11/18.

Brian reported his tax and asked for an IA, under which he paid money. While paying, IRS hit him with a SNOD, disallowing most of his deductions. Brian never got the SNOD, but he got the NITL. After Appeals affirms IRS on the CDP, Brian petitions. He gets a remand,  and after trial establishes all his deductions, so for the year at issue, he owes zero.

Brian wants back what he paid on the IA. Tax Court says “no jurisdiction to order a refund, as the Sections 6511 clocks have run.”

Our old friend Greene-Thapedi says “if no lien or levy, nothing more for Tax Court to do.” As Brian owes nothing, game over. Brian never raised an overpayment in his petition or on brief.

But the DC Clinicians are in as amicus “in the area of taxpayer rights and procedural efficiency.” 2018 T. C. Memo. 149, at p. 6.

Section 6214 (a) lets Tax Court redetermine a deficiency if timely petitioned (and Brian did). “But section 6512(b)(3) limits our jurisdiction to order a credit or refund to only that portion of a tax paid after the mailing of a notice of deficiency or in regard to which a timely claim for refund was pending (or could have been filed) on the date of mailing of the notice of deficiency.” 2018 T. C Memo. 149, at p. 8.

Brian was past the cutoff. He raised the refund post-trial, and that was years after the SOL.

The DC Clinicians argue Judge Vasquez’s dissent in Greene-Thapedi. But Judge Halpern isn‘t buying. Brian wants to claim that the SNOD language in Section 6512(b)(3) grants Tax Court authority to order a refund for a non-mailed or non-received SNOD. “We see no reason why the issuance of a notice of deficiency that petitioner never received should allow him to pursue a claim for refund that would otherwise have become time barred long before he manifested any awareness of it.” 2018 T. C. Memo. 149, at p. 17.

It’s true that the CDP process is there to make sure IRS collects the right amount of tax. But it doesn’t protect taxpayers who don’t file timely for refunds, or raise the refund issue from the getgo.

And the cases on which the DC Clinicians rely are abatement of interest cases.

“Because a claim for interest abatement made in connection with a CDP hearing gives us jurisdiction under section 6404(h) that is independent of our jurisdiction under section 6330, it follows that, in our review of a notice of determination denying abatement, we can consider any claim by the taxpayer that the abatement requested would result in an overpayment that should be refunded to the taxpayer or credited to his account.

“The refund petitioner seeks, however, is not grounded in a claim for abatement of interest.  And, more generally, on the facts before us, we cannot view the petition filed in this case as one filed not only under section 6330(d)(1) but also under another provision that would give us overpayment jurisdiction.  In particular, we cannot accept the petition as one for redetermination of the deficiency in petitioner’s 2008 Federal income tax that would provide us with ancillary overpayment jurisdiction under section 6512(b)(1).  Petitioner’s supplemental brief posits that respondent mailed him a notice of deficiency for his 2008 taxable year on August 7, 2012.  On that premise, a petition for redetermination of that deficiency would have been timely under section 6213(a) only if filed by November 5, 2012–a date that preceded by almost nine months the issuance of the notice of determination in response to which petitioner filed his petition.  (Moreover, neither in that petition nor, as far as the record discloses, in his CDP hearing did petitioner claim that he had overpaid his 2008 Federal income tax liability.).” 2018 T. C. Memo. 149, at pp. 32-33.

Innocent spousery cases differ. “Even if amicus’ premise were correct, the resulting disparate treatment of innocent spouse claims depending on their jurisdictional posture would be required by the applicable statutory provisions.  Section 6330(c)(2)(A)(i) allows for the raising of “appropriate spousal defenses” when “relevant * * * to the unpaid tax or the proposed levy”.  In contrast to section 6015(g), section 6330(c) provides no express basis for a taxpayer to claim (or for Appeals to consider) a taxpayer’s claim for a refund arising from a grant of relief from joint and several liability.  Such a claim could be considered only if the taxpayer’s request for a CDP hearing and petition to this Court for review of a notice of determination denying the requested relief could be viewed as grounded in section 6015 as well as section 6330.” 2018 T. C. Memo. 149, at p. 34.

And if Brian has a due process beef, it’s his own fault.

“Whenever the statute of limitations bars a taxpayer from pursuing a claim for refund, however, it will result in the Commissioner’s retention of an overpayment of tax.  That result cannot be viewed as violating the taxpayer’s due process rights because his loss of any refund to which he might have been entitled would arise from his own failure to claim the refund timely.  Moreover, most of the payments that petitioner now seeks to have refunded to him were voluntary payments of the tax he reported on his 2008 Federal income tax return.  We fail to see how our decision not to assume jurisdiction to consider a refund claim of which petitioner manifested no awareness before the expiration of the applicable period of limitations would result in an unconstitutional violation of his due process rights.” 149 T. C. Memo. 149, at pp. 36-37.

Takeaway- If not frivolous, ask for a refund every chance you get.

 

DON’T ARGUE YOUR CPA’S MISTAKES

In Uncategorized on 09/10/2018 at 17:23

If You Want to Claim Good-Faith Reliance

Jeffrey B. Yapp and Tamara A. Yapp, 2018 T. C. Memo. 147, filed 9/10/18, are looking at a $95K accuracy chop. While Judge Cohen does allow Jeff’s $120K legal fee deduction, as he was the sole member of the LLC when it paid the fee (he only sold off other membership interests thereafter, converting from disregarded to passthrough), Tamara’s probiotic start-up was just that. She gets a Section 195 throw-out of all her deductions.

Jeff had amended operating agreements and records showing when he paid the legal fees and when the rest of his crew came aboard. His claimed wages fail, because he has no canceled checks, no W-2s, no 1099-MISCs and no employment contracts.

Tamara is a nonstarter.

So the chop, somewhat diminished, is still in play, awaiting the Rule 155.

“According to petitioners, the penalties are not applicable because they relied upon their C.P.A. to report the Federal income tax liabilities shown on their joint returns.  Under certain circumstances a taxpayer’s reliance upon professional advice may establish the taxpayer’s reasonable cause and good faith with respect to an underpayment of tax.” 2018 T. C. Memo. 147, at p. 17. And all they have to do is show they told the pro the whole story, that the pro was competent, and that they relied in good faith. And “rely in good faith” means at least you glanced at the return and nothing jumped off the page.

But on the trial, Jeff and Tamara chop the ground out from under their CPA. Sound familiar, my CPA readers?

“T. Yapp testified at trial that they provided their C.P.A. with only the general ledgers that their bookkeeper kept to record income and expenses for [Jeff’s LLC], [Tamara’s LLC], and the Yapp household.

“Furthermore, J. Yapp admitted at trial that he approved the filing of the returns without fully reviewing them.  Had petitioners reviewed the returns, they would have noticed the numerous mistakes that they claim their C.P.A. made, such as selecting the wrong accounting method for reporting [Jeff’s LLC]’s taxable income in 2009, including personal expenses as part of [Tamara’s LLC]’s business deductions, and failing to continue to claim on the 2010 return depreciation deductions claimed for 2009.  The identified mistakes undermine any assumption that the preparer was a competent professional merely because he was a C.P.A.  Petitioners’ purported reliance on their C.P.A. does not establish that they acted with reasonable cause and in good faith.”  2018 T. C. Memo. 147, at pp. 17-18.

MAKE RESERVATION – PART DEUX

In Uncategorized on 09/10/2018 at 16:40

No, this is not a retelling of the old joke about what certain young ladies make for dinner. This is the point for Catherine J. Clay, 2018 T. C. Memo. 145, filed 9/10/18.

Cath’s biggest problem is the $36K of long-term disability insurance payments she got from the policy her school district carried (for which she contributed nothing), but which she was obligated to repay when she qualified for Social Security Disability, and collected thereunder.

Cath agreed she owed the money, but never repaid. Or paid tax on it.

Judge Gale: “The claim-of-right doctrine treats otherwise taxable money proceeds received by a taxpayer under a claim of right, without restriction as to their disposition, as taxable income even though the taxpayer may be under a contingent obligation to return the money at a later time.” 2018 T. C. 145, at p. 11.

Except. What would we ever do in tax law without an “except?”

If someone gets money they shouldn’t have, recognizes the mistake, and makes provision to pay it back, it’s not received in the year in question as claim-of-right, because taxpayer recognized it had no right, and acted accordingly. If a repayment agreement is made, or money put aside or reserved for repayment, no recognition in year received.

It’s called the Merrill rule, and Judge Gale has a lot to say about it. But it doesn’t help Cath; she should have made reservation.

NOT ENDANGERED, EXCEPT THE BENDERDINKER

In Uncategorized on 09/10/2018 at 16:19

Champions Retreat Golf Founders, LLC., Riverwood Land, LLC., Tax Matters Partner, filed 9/10/18, is more like a rout than a retreat, as Judge Pugh finds there weren’t enough “rare, endangered, or threatened species in the easement area to satisfy the conservation purpose requirement.” 2018 T. C, Memo. 146, at p. 24.

The aim is to preserve a significant relatively natural habitat for flora and fauna. “A significant relatively natural habitat can include but is not limited to ‘habitats for rare, endangered, or threatened species of animals, fish, or plants; * * * and natural areas which are included in, or which contribute to, the ecological viability of a local, state, or national park, nature preserve, wildlife refuge, wilderness area, or other similar conservation area.’  Sec. 1.170A-14(d)(3)(ii), Income Tax Regs.  Some human alteration of a significant relatively natural habitat will not result in the denial of a deduction, as long as ‘the fish, wildlife, or plants continue to exist there in a relatively natural state.’  Id. subdiv. (i).” 2018 T. C. Memo. 146, at p. 23.

Now it’s not necessary for a rare, endangered or threatened species to be covered by the Endangered Species Act of 1973, but the avian population at the Champions’ beaten-down golf course doesn’t make the cut. Only the brown-headed nuthatch is anywhere on the leaderboard.

The land-based fauna don’t fare a lot better. Only the southern fox squirrels are listed as “declining,” but they can’t be too far off the glidepath, because they can be legally hunted in GA.

The Champions might have a shot with the denseflower knotweed, but they show up in only 7.5% of the $10 million easement area, and anyway the Champions are trying to extirpate the same.

“Assuming that denseflower knotweed could flourish in both swaths of undisturbed bottomland forest in the easement area, its found suitable habitat would constitute less than 17% of the easement area.  Moreover, hole 4 on the Island course was designed to drain into the only swath of bottomland forest on the easement area in which the denseflower knotweed is found, introducing the chemicals used by Champions Retreat (albeit legally and in accordance with the easement)–including herbicides–into its habitat.  Less than 17% of the easement area is not enough to fulfill the conservation purpose of providing a significant relatively natural habitat.  See Atkinson v. Commissioner, at *35 (holding that a plant found on 24% of the easement area was ‘too insignificant’ to lead the Court to conclude that the easement area was a significant relatively natural habitat).” 2018 T. C. Memo. 146, at p. 27.

And visual space is limited to those who own houses around the golf course. Access to Little River, which meanders about the property, may not be open to the public: there was a kerfuffle, still unresolved, the Benderdinker row.

“The Benderdinker Festival–a community boating event held annually that included upwards of 800 people–also was held annually on the Savannah and Little Rivers, taking participants in a loop around Germain Island.  In 2013 there was a dispute over whether the Benderdinker Festival could use the Little River while Champions Retreat was hosting a golf tournament, which turned on whether the Little River was a public waterway or was privately owned by Champions Retreat. Champions Retreat eventually gave its permission, but whether the Little River is public or private remains unresolved.” 2018 T. C. Memo. 146, at p. 17.

No deduction.

Takeaway- Having only a nuthatch, a knotweed, a fox squirrel, and a busted Benderdinker, when you’ve got a $10 million deduction on the line, is the nearest thing to a Michael Corleone gambit I can think of.

WHERE IS JUDGE GUSTAFSON?

In Uncategorized on 09/07/2018 at 17:12

Now That We Need Him

Some of my senior readers may recall Judge Gustafson’s ultra-obliging nature, when he offered to try John Carter’s case in the slammer wherein John was an involuntary resident. Those who don’t, check out my blogpost “We’ll Come to You,” 9/18/12.

Can’t believe it was six years ago.

Well, today Michael Jack Riolo, Docket No. 1941-16, filed 9/7/18, might be standing in the need of similar treatment.

Judge Buch has this one.

“This case is calendared for trial at the Court’s December 10, 2018, Miami, Florida trial session. On September 6, 2018, the Commissioner filed a Motion for Continuance informing the Court that Mr. Riolo is incarcerated in Coleman, Florida, which is approximately 277 miles from Miami. The Commissioner also informed the Court that he had sent Mr. Riolo a letter explaining the he needed to file a Motion for Writ of Habeas Corpus Ad Testificandum with the Tax Court requesting his release from prison in order for him to testify at trial.” Order, at p. 1.

The issue, of course, is that Mike Jack will have to stump up the cash to pay for his trip to Miami and back from Coleman (wherever that may be).

So Mike Jack can respond to IRS. And see if Tax Court can send a Judge to Coleman.

“CAN’T HELP LOVIN’ THAT MAN”

In Uncategorized on 09/06/2018 at 17:44

Rebecca Gebman, who last appeared a year ago in this my blog (“No Good Deed – Redux,” 9/18/17) is back. And while the leader of The Jersey Boys is no longer counsel of record, Rebecca can’t seem to adjust to that fact.

So I entitle Rebecca’s story with that classic Hammerstein – Kern torch song from 1927.

Here’s Judge Chiechi to toss six (count ‘em, six) attempts by Rebecca to amend her petition, Clark J. Gebman & Rebecca Gebman, et al., Docket No. 15941-12, filed 9/6/18.

Rebecca moved a couple weeks ago (hi, Judge Holmes) to amend her petition. But she never lodged (that is, sent in but not attached to the motion) the proposed amendment. So Judge Chiechi ordered her to do so.

Judge Chiechi unleashed a torrent.

“On September 4, 2018, at 4:50 p.m., Ms. Gebman filed a document titled ‘PETITIONERS’ MOTION FOR LEAVE TO FILE AMENDED PETITION’. That document was dated March 1, 2017, and signed by Frank Agostino (Mr. Agostino), who is no longer counsel of record for petitioners in these cases. On the same date, at 5:02 p.m., Ms. Gebman filed a document titled ‘PETITIONERS’ FIRST AMENDMENT TO MOTION FOR LEAVE TO FILE AMENDED PETITION’. That document was dated March 1, 2017, and signed by Mr. Agostino. Moreover, that document is duplicative of the document titled ‘PETITIONERS’ MOTION FOR LEAVE TO FILE AMENDED PETITION’ that Ms. Gebman filed on September 4, 2018, at 4:50 p.m.

“On September 4, 2018, at 4:51 p.m., Ms. Gebman filed a document titled ‘PETITIONERS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE AMENDED PETITION’. That document was dated March 1, 2017, and signed by Mr. Agostino. On the same date, at 5:02 p.m., Ms. Gebman filed a document titled ‘PETITIONERS’ MEMORANDUM IN SUPPORT OF FIRST AMENDMENT TO MOTION FOR LEAVE TO FILE AMENDED PETITION’. That document was dated March 1, 2017, and signed by Mr. Agostino. Moreover, that document is duplicative of the document titled ‘PETITIONERS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE AMENDED PETITION’ that Ms. Gebman filed on September 4, 2018, at 4:51 p.m.

“On September 4, 2018, at 5:02 p.m., Ms. Gebman filed a document titled ‘PETITIONERS’ AFFIDAVIT OF REBECCA GEBMAN IN SUPPORT OF FIRST AMENDMENT TO MOTION FOR LEAVE TO FILE AMENDED PETITION’.

“On September 4, 2018, at 5:02 p.m., Ms. Gebman lodged a document titled “PETITIONERS’ FIRST AMENDMENT TO MOTION FOR LEAVE TO FILE AMENDED PETITION’. That document was dated March 1, 2017, and signed by Mr. Agostino.” Order, at pp. 1-2.

With commendable patience, Judge Chiechi asks Ms. Gebman please to lodge an amendment to her petition per Rule 41(a).

If she doesn’t, though I’m sure she can understand Ms. Gebman’s emotional attachment to her former attorney, Judge Chiechi warns that “…the Court is strongly inclined to deny Ms. Gebman’s motion.” Order, at p. 3.

IT’S ALL ON THE TABLE

In Uncategorized on 09/05/2018 at 16:37

Once you raise underlying liability, the record rule is off the table.

Debra L. March, Docket No. 6161-17L, filed 9/5/18, is making a return appearance here, as that Obliging Jurist, Judge David Gustafson, once again makes plain that SNODs don’t equal NODs when it comes to the record rule.

Debra was here last month in my blogpost “Agree with Thine Adversary Whilst Thou Art in the Way” – Maybe,” 8/10/18.

Debra is unhappy that Judge David Gustafson deemed IRS’ Rule 91 facts conclusive. She claims now she objects to IRS going outside the record rule in her CDP.

But she also challenged her underlying liability, although Judge Gustafson isn’t going to decide that she had a prior chance.

“However, this Court remains of the view that it is not confined to the administrative record in CDP cases, and this is especially so where the CDP case involves a challenge to the underlying liability, pursuant to section 6330(c)(2)(B), and thus resembles the more typical deficiency case. Of course, we do submit to the Courts of Appeals, and we therefore follow the law as construed by the Court of Appeals to which a given case is appealable, even where we disagree; but in this case appeal would be to the Court of Appeals for the 10th Circuit, which, as far as we know, has not spoken on this issue. Cf. Kasper v. Commissioner, 150 T.C. No. 2, slip op. at 19, n.13 (2018) (surveying circuit law). (Ms. March cites Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994), but it is not a CDP case, has no obvious relation to tax, and was decided before section 6330 was even enacted.)” Order, at pp. 3-4.

“Obvious relation to tax,” Judge? What about Mayo Clinic? No separate body of law for tax, as opposed to all other law.

Howbeit, Debra doesn’t want to show for a trial, and is willing to go with a Rule 122. So let both sides stipulate to everything they can, and go with it.