In Uncategorized on 03/06/2019 at 17:10

Judge David Gustafson is truly the petitioner’s friend. Though I’ve accorded STJ Diana L. Leyden the title of “The Taxpayer’s Friend” on account of her service in her sidewalks of New York days, Judge Gustafson goes even farther and further. He’ll try your case in the slammer; he’ll draft your pleadings; he’ll do everything but bring doughnuts and coffee to calendar call and feed the parking meter while you wait. He won’t do your research, though.

But today he outdoes himself.

This designated hitter, Herbert Anderson Denton & Lydia B. Denton, Docket No. 9671-18L, filed 3/6/19*, tells a tangled tale of two (count ‘em, two) tax years ten years apart, featuring NODs, non-NODS, CDPs with dubious jurisdictional predicates, IRS miscues and attempted goal-line saves thereof.

The older year is still in play, both as to NITL and NFTL, as the dates are so jumbled Judge Gustafson can make nothing of them. But IRS can try to come up with sufficient proof that Herb & Lydia are too late for that year. If IRS can, Judge Gustafson will toss that part of their petition.

It looks like the more recent year is a definite toss, as Herb & Lydia petitioned before Appeals issued a NOD for the NITL at issue. During this spaghetti-like tangle, IRS unloads a NOD, and there’s still time to petition that one.

Into the fray comes Judge David Gustafson, and this is a classic.

“On the one hand it is certainly not our place to advise the Dentons whether or how to litigate their disputes with the IRS. But on the other hand, the pendency of a case like this one (i.e., where more than one tax year is at issue and the Court dismisses only one of those years for lack of jurisdiction) might lead a petitioner to assume that he might not need to file another petition for a new case in the same Court for the tax year initially raised but now dismissed…. Consequently, we think it appropriate to suggest that the Dentons consider whether that could be a wrong assumption. The Dentons should take note of the Notice of Determination issued for [the dismissed year] on February 20, 2019, should decide whether it is in their interest to file now a separate suit challenging that notice, and should calculate the due date for such a suit.” Order, at p. 4. (Emphasis by the Court).

In case Herb & Lydia are a wee bit slow off the mark, Judge Gustafson quotes from the NOD: “The first page of the notice states- ‘If you want to dispute this determination in court, you must file a petition with the United States Tax Court within a 30-day period beginning the day after the date of this letter”–i.e., 30 days beginning February 20, 2019.” Order, at pp. 4-5.

Nudge-nudge, wink-wink, view halloo, reveille third platoon wakey-wakey, all hands on deck.

*Denton 3:6:19

Edited to add, 8/25/21: The Dentons stiped out to an IA, 6/26/19.


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