Attorney-at-Law

FUTILITY

In Uncategorized on 12/10/2018 at 16:38

It is a long-standing legal maxim that the law does not require performance of a futile act. In the ongoing chanson de geste of James L. McCarthy, Docket No. 21940-15L, filed 12/10/18, Judge James S (“Big Jim”) Halpern wants to be sure that no violation of that hallowed principle has occurred.

All y’all will recall Judge Big Jim sent IRS’ and James L’s counsel off to tell him more before. See my blogpost “When? – Reprise,” 10/31/18, when Judge Big Jim wanted enlightenment of James L’s relationship to his wife’s C Corp, which leased some property from a trust, and which lease might have had some value before wife walked away therefrom.

Whatever enlightenment was furnished, the trust angle is still on the table. When James L went back to Appeals on remand, his OIC and PPIA again were bounced, because Appeals was convinced the trust property was still in play, and James L’s counsel didn’t furnish fresh financial info.

The supp NOD from the remand “…states that…apparently in response to a request for updated financial information from the Settlement Officer (SO) R, petitioner’s attorney ‘stated that if Appeals was going to maintain its decision regarding nominee ownership, there was no point in providing updated financial information.’” Order, at p. 1. (Name omitted).

Well, IRM pt. 5.15.1.l(4) (Nov. 17, 2014), and IRM pt. 5.15.1.2(3) (Aug. 29, 2018) state that for any collection alternative, the financial info must be no older than six (count ‘em, six) months. So mox nix that whatever info James L and his attorney would furnish would either constitute a concession on the trust angle if that were included, or would be bounced as insufficient if weren’t included.

Except.

“…petitioner’s refusal to submit updated financial information may provide an independent basis for upholding Appeals’ determination in the present case, regardless of petitioner’s interest in the trust’s assets–unless, perhaps, petitioner’s refusal was justified because he or his counsel were given reason to believe that Appeals had resolved to adhere to its position on the nominee issue after remand so that the provision of updated financial information would be futile.

“The parties’ briefs do not address the potential impact on our disposition of the case of petitioner’s refusal to provide updated financial information. Respondent’s briefs focus on whether SO M was correct in her conclusion that the value of the trust’s assets had to be considered in evaluating petitioner’s proposed collection alternatives. Respondent does not advance petitioner’s failure to provide updated financial information as an independent ground for upholding Appeals’ rejection of petitioner’s proposed collection alternatives. And petitioner’s briefs offer no justification for his failure to submit updated financial information. In particular, they do not describe any communications received from SO M or other Appeals representatives that might have supported an inference that the provision of updated financial information would be futile. Because the parties’ briefs are insufficient to allow us to determine the impact of petitioner’s failure to provide SO M with updated financial information, we will require further submissions. With this Order, we require petitioner to explain that failure. If appropriate, after receiving petitioner’s explanation, we will give respondent the opportunity to respond to it.” Order, at p. 2. (Name omitted).

Takeaway- Build a record. If all you get on remand is the same argument you consistently rejected, and that got you to Appeals, put something in writing about no point in giving more financial info that omits the items at issue, as Appeals won’t give on that point. And tell ‘em Judge Big Jim sent you.

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