Attorney-at-Law

THE EXCUSE SWEEPSTAKES

In Uncategorized on 03/21/2019 at 16:27

I’m really sorry just to give a passing nod to Edward G. Kurdziel, Jr., 2019 T. C. Memo. 20, filed 3/21/19. It’s just another indocumentado too-much-fun Section 183 hobby loss case. But how can you resist a Judge Holmes opinion that begins thus? “Edward G. Kurdziel is the only man in America licensed to fly a Fairey Firefly.  He is also the only man in America who has a Firefly to fly.” 2019 T. C. Memo. 20, at p. 1.

Judge Holmes has a whole history of the Firefly, of course; I might even have seen one when I visited HMS Victorious when she called on Our Minor Outlying Island in 1957. Marx Bros. fans will know why I wish Captain Kurdziel had called his aircraft “Rufus T.” . But he didn’t.

The other T. C. Memo. today is a yacht and an RV that flunk the documentation test, and the rehab and conversion to rental of taxpayers’ primary residence don’t cut it for Judge Nega. Since one of the taxpayers is an attorney who has litigated tax cases, the Section 6662(a) chops are in play, despite the taxpayers’ highly-qualified CPA. Taxpayers should’a known they didn’t tell CPA the whole story.

But we have another entry in my sporadic, no-prize, “best excuses” sweepstakes. Here’s Christopher J. Bard, Docket No. 4965-18S, filed 3/21/19. Chris wants a vacation.

“In his motion to vacate or revise petitioner, a Chicago police officer who commenced the present judicial proceeding on March 12, 2018, as a selfrepresented taxpayer, states that he ‘was completely shocked when he recently discovered that his case had been dismissed’ because, ‘based on a misunderstanding and miscommunication with his tax return preparer, an enrolled agent,’ he ‘mistakenly believed that his only obligation with respect to this tax court case was to file the petition at the beginning of the case and to do nothing more.’” Order, at p. 1.

But Chris got the usual notice setting trial, and a separate reminder thereof, from the Tax Court clerk. He also got the motion papers when IRS moved to dismiss for want of prosecution, alleging Chris being “generally non-responsive.” “Respondent’s statement above about petitioner being ‘generally non-responsive’ is consistent with a statement made by petitioner himself in his pending motion to vacate or revise, i.e., ‘Petitioner ignored all correspondence from the Service relating to this case’ because of his mistaken belief that ‘his only obligation with respect to this tax court case was to file the petition at the beginning of the case and to do nothing more.’” Order, at p. 4.

Then the Court got back in the act, sending Chris an order to show up and bukh about why he should not be tossed. He didn’t, and he was.

Now I’ve called STJ Robt N Armen “The Judge With a Heart.” But STJ Armen hasn’t much heart for Chris’ excuse in this designated hitter.

“As the record in this case makes abundantly clear, petitioner received multiple warnings from the Court about the need to appear in court…, and about the possible consequence if he failed to do so. Petitioner was also warned by the Court about the need to cooperate in the preparation of this case for trial and about the possible consequence if he failed to do so. None of these warnings were in ‘legalese’ or used arcane language. Rather, all of the warnings were clear, concise, and written in plain English, and would be easily understood by a reasonable person. Thus, petitioner’s allegation that he believed ‘his only obligation with respect to this tax court case was to file the petition at the beginning of the case and to do nothing more’ strikes the Court as disingenuous. Surely a police officer would know that when a court says to a party in a judicial proceeding that the party needs to ‘show up’, the party shows up. Petitioner failed to do so and, at the time, failed to offer any reason that might have excused his failure to do so. And in his motion to vacate or revise petitioner fails to offer a convincing reason to justify his failure to appear.” Order, at p. 5. (Footnotes omitted; emphasis by the Court).

One footnote says IRS also contacted Chris about cooperating in trial prep, and the other footnote says Chris sent some documentation to Appeals after he began the Tax Court case, which puzzles STJ Armen. If he needed to do nothing, why send anything to anybody?

Of course, as Chris is a police officer, maybe in his cases when the court says “show up” to one whom Chris and his colleagues have collared, the party takes off, and Chris and colleagues have to go chase. But as such excursions rarely end well for the perp, Chris must know that it won’t end well for him.

No vacation for Chris.

  1. […] Lew Taishoff mentions the case briefly just to note the lovely language of Judge Holmes. […]

    Like

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: