Attorney-at-Law

THE “SMALL COURT”

In Uncategorized on 11/21/2018 at 14:29

Often have litigants, and not only the self-represented, ascribed to Tax Court powers which the Constitution and Congress have vested in the Article III courts. As an Article I court (see Art. I, Sec. 8), Tax Court is truly inferior.

I know my readers hardly need be reminded that Tax Court’s principal occupations are determining deficiencies and reviewing CDPs.

Today Judge David Gustafson has a designated hitter that reinforces the lesson, M. Sue Hawkins, Docket No. 19223-17, filed 11/21/18.

M. Sue says she was sick, so she missed showing up in the Mile-High City to try her case. IRS moved to toss for non-prosecution, and after the usual OSC, Judge Gustafson tossed her petition.

A couple days later (hi, Judge Holmes), M. Sue sends in a letter, which Judge Gustafson, obliging as always, characterizes as a Rule 161 vacation request.

“The letter states she does not owe any unpaid taxes. Her brief statement in her recent letter seems to be similar her petition [sic] (Doc. 1), in which she states that she ‘may have filed incorrectly’ (i.e., on her tax return) but that ‘as far as I can tell, the deficiency alleges was paid on my behalf by my retirement account.’” Order, at pp. 1-2.

Maybe the shortfall was paid, but that’s not the point.

“Our jurisdiction in this case is not to determine whether her tax liability has been paid but rather to determine what that liability is. In particular, we are to determine whether her … income tax liability is greater than what she reported on her return. Ms. Hawklins [sic] seems to admit that there is a deficiency in the tax she reported (the issue over which we have jurisdiction) but to contend that the deficiency has been paid (an issue over which we do not have jurisdiction).” Order, at p. 2.

If in fact the amount of deficiency had been paid, all Tax Court can do is dismiss for lack of jurisdiction.

So let IRS see if whatever they claim M. Sue owes was paid. And let M. Sue cooperate fully with IRS to establish whatever she claims.

But if she doesn’t play nice, her motion for vacation will be denied.

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