Attorney-at-Law

YAH YA

In Uncategorized on 10/29/2018 at 16:34

No, not a misspelling of the 1961 Lee Dorsey, Clarence Lewis, Morgan Robinson and (maybe) Morris Levy hit with the peculiar lyrics. This is the sad story of Kaamilya F. Abdelhadi, 2018 T. C. Memo. 183, filed 10/29/18.

But in the year at issue someone filed MFJ with grocer “Mr. Abdelhadi,” who apparently has no given name, but who had fathered two of Kaam’s children, under the name “Yahya Abdelhadi” . The thing was, Kaam and Mr. Ab weren’t married that year. She did marry Mr. Ab seven years after the year at issue.

Mr. Ab was apparently a tax dodger as well as a grocer, because Kaam got innocent spousery for the year she married him and two succeeding years.

The issue here is the “stand alone” Section 6015(e)(1) that Kaam filed for the year at issue. That year the MFJ 1040 was filed in the names of Mr. Ab and “Yahya Abdelhadi,” IRS audited, and Kaam signed a Form 870 waiver and Form 4549 consent to changes, hitting Kaam with $30K in deficiency and chops.

Judge Pugh: “Before her marriage petitioner considered herself single and used her maiden name of Sebree on documents.  Nonetheless, a joint Form 1040, U.S. Individual Income Tax Return, was filed for petitioner and Mr. Abdelhadi for [year at issue].  Petitioner did not see, review, or sign that return; she has not seen it since; and it is not part of the record.  A refund check was issued to Mr. Abdelhadi and petitioner (under her maiden name).  Petitioner was unaware of the refund check at the time it was issued and did not endorse it.  The signature that does appear on the check does not match petitioner’s signature on other documents in the record.   The address on the check was that of Mr. Abdelhadi’s grocery store, not petitioner’s home address.  Petitioner knew of the grocery store in [year at issue] but worked only limited hours there (without pay) because she had to care for a special needs child.  She did not work otherwise in [year at issue] and did not file a tax return for [year at issue].  She did file returns for [preceding year] and [subsequent year], and for both years she listed her filing status as single.” 2018 T. C. Memo. 183, at pp. 2-3.

IRS applied her innocent spousery refunds for the three (count ‘em, three) years for which she was entitled to innocent spousery to her liability for the year at issue. Even though there clearly was hanky-panky with that return and refund.

My eagle-eyed and incredibly hip readers have already spotted the problem.

“Respondent does not dispute the facts but counters that because petitioner filed a petition seeking review of respondent’s denial of her claim for relief from joint and several liability under section 6015(e) (known as a “stand-alone” petition), not a petition for redetermination of a deficiency, our jurisdiction is limited to a determination of whether petitioner is entitled to relief under section 6015, not whether petitioner is liable for the tax.” 2018 T. C. Memo. 183, at p. 5.

Of course, Section 6015 is available only to those who filed a joint return. Kaam a/k/a Yahya did not, and no one questions that whatever Mr. Ab filed, or caused to be filed, it wasn’t a joint return.

“In a stand-alone case, such as petitioner’s, section 6015(e) gives us jurisdiction to determine whether relief is available under section 6015 only. But we can grant relief under section 6015 only if a joint return has been filed. We also have held that the filing of a joint return is a condition for relief under section 6015 but not for our review of the denial of a claim for relief. Because petitioner did not file a joint return, there is no relief we can grant under section 6015.  And we do not have jurisdiction to order respondent to refund any amounts although she may be entitled to file a claim for refund on the basis that she was not liable for the tax paid toward Mr. Abdelhadi’s [year at issue] tax liability with her retained refunds….  And we do not have equitable powers to expand our statutorily prescribed jurisdiction no matter how unfair the circumstances may seem.  Finally, we cannot amend pleadings as petitioner requests to give us jurisdiction to order a refund of an overpayment even though it appears that she was not jointly and severally liable for the tax owed by Mr. Abdelhadi for [year at issue].  See secs. 6213(a), 6512(b) (generally restricting the Court’s jurisdiction to order refunds to cases in which a petition for redetermination of a deficiency has been filed); Rule 41(a) (barring amendments after expiration of time for filing a petition if the amendment would confer jurisdiction over a matter that was not already within the Court’s jurisdiction under the petition).” 2018 T. C. Memo. 183, at pp. 6-7. (Citations and footnote omitted).

The footnote says maybe the SOL has run on a refund claim for the three years’ worth of innocent spousery giveback IRS grabbed from  Kaam a/k/a Yahya.

Takeaway 1- Counsel, when you’re on a “stand-alone,” raise refund, lack of opportunity to contest, and fraud, to the extent you’ve got any rational basis for so claiming.

Takeaway 2- See my blogpost “I’m From The Government, And I’m Here To Help” – Part Deux,” 3/19/15.

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