In Uncategorized on 03/01/2019 at 14:52

We all (or almost all) have them, some documents in now-obsolete formats from wordprocessing programs gone long since, and some up-to-the-nanosecond, which we use every working day. When racing the clock, we haul the nearest appropriate one out, do a quick edit, and fire it off, barely beating the deadline.

Most of the time it works. Most of us have neither time nor inclination for wheel-reinvention. But when it doesn’t work, things get messy.

Here’s Quoc H. Nguyen & Tham T. Tran, Docket No. 23110-18SL, filed 3/1/18, but it isn’t Quoc’s story nor is it Tham’s. I won’t name IRS’ counsel, because there but for the grace of you-know-Whom goes any one of us.

Quoc & Tham petitioned a NOD. Ch J Maurice B (“Mighty Mo”) Foley spots a flaw in the accompanying documents.

“No copy of any notice of deficiency or determination was attached to the petition. Rather, the petition incorporated a Notice CP504, Notice of intent to seize (levy) your property or rights to property, issued to petitioner Tham T. Tran for [year at issue] and an amended [year at issue] tax return for petitioners.” Order, at p. 1.

IRS’ counsel answers 56 days after the petition is served (note Rule 36(a) says 60 days to answer), during the Shutdown. So counsel may be furloughed, but clearly under the gun.

Ch J Mighty Mo: “..respondent failed to attach thereto any notice of deficiency or determination that would support jurisdiction or the filing of an answer. Instead respondent merely noted that no notice of determination concerning collection action had been attached to the petition and that the notice of intent to levy had been included. Respondent did not otherwise explicitly address the jurisdictional status of this case or suggest that any motion or other steps would follow. Inexplicably, answer also closed with a prayer that ‘respondent’s determination, as set forth in the notice of deficiency and/or notice of determination, be in all respects approved’.” Order, at p. 1.

But of course there are only 45 (count ‘em, 45) days to move with respect to a petition, per Rule 36(a), and IRS’ counsel had blown past that.

Still, a second look at the answer, and a quick edit job, before hitting “send” might have saved the day.

Edited to add, 3/2/19: But how can respondent “suggest that any motion” would follow? Rule 36(a) provides, in pertinent part (as my on-the-slopes-at-Vail colleagues would say)  “(a) Time To Answer or Move: The Commissioner shall have 60 days from the date of service of the petition within which to file an answer, or 45 days from that date within which to move with respect to the petition.” That time is gone, Ch  Mighty Mo. So I guess it’s sua sponte time at The Glasshouse.

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