Attorney-at-Law

CONFLATION

In Uncategorized on 03/22/2019 at 16:20

It’s common for pro se petitioners (and even Tax Court admittees, occasionally) to conflate poor l’il ole Article I Tax Court with its much more puissant companions, the Article IIIs, like the USDCs and CCAs. Today I have just one example, Victor Maurice Brown & Kimberly Denise Brown, Docket 20102-17, filed 3/22/19.

Vic & Kim want damages from Kim’s former employer. They want to litigate a year as to which IRS conceded the deficiency. They want withdrawal of a tax lien for a different year when they had a SNOD, which they didn’t timely petition, and a NITL, which they also failed to petition timely. They may have gotten a NOD from an equivalent hearing, but that avails them not.

So whatever IRS did after that is not for Tax Court. They also want filing fees for an amended 1040s for the two years, although they never filed such amendments or amended their petition. And they want an agreed set of facts.

Judge David Gustafson, whose obliging nature has furnished this blogger with a cornucopia of blogfodder, cannot help Vic & Kim.

“We do not have jurisdiction to adjudicate any disputes between the Ms. Brown and her former employer nor to award Ms. Brown any damages from her former employer. (Their citation in this connection to the Federal Rules of Civil Procedure is wide of the mark. The Tax Court operates under its own rules, which make no provision for ordering a third party to be a defendant.) In the absence of a timely CDP request, a notice of determination pursuant to section 6320(a)(1) or 6330(a)(1), and a timely petition challenging such a determination, we do not have jurisdiction over any contention as to IRS liens, levies, or other collection activity. We do not have jurisdiction to award fees for filing amended tax returns nor any other fees other than those that might be allowed pursuant to section 7430. In the Tax Court it is the judge who makes the findings of fact, see sec. 7459(b), and the Tax Court is not authorized to conduct jury trials. The Anti-Injunction Act (sec. 7421) generally prohibits injunctions against the IRS, and the Browns showed no exception applicable here to that general rule.” Order, at pp. 5-6.

It’s true Vic & Kim did raise one year timely, but that was the one IRS conceded. “By attaching to their petition the … notice of deficiency, the Browns did properly invoke our jurisdiction to redetermine the… deficiency that the IRS determined against them in [sic]. However, in view of the Commissioner’s concession of that deficiency, there is nothing left for us to decide.” Order, at p. 6.

IRS moves to toss Vic’s & Kim’s Rule 91(f) OSC, to enter decision and to quash a subpoena Vic & Kim served.

“The Browns’ response to the motion for entry of decision and their motion for an order to show cause state issues that they call ‘new matter’—a phrase they draw from Rule 142(a), which they believe to be issues we should decide in this case. They evidently misunderstand Rule 142(a), in which ‘new matter’ consists of issues raised by the Commissioner beyond what the IRS asserted in the notice of deficiency. Moreover, the Browns have never moved for leave to amend their petition to add any new basis for relief. However, we cannot tell whether any of the ‘new matter’ really is new or is instead a rehashing or elaboration of the allegations in their petition. In any event, we cannot discern in their filings any issue within our jurisdiction that relates to their [conceded] tax year and that would not be resolved by our entry of a decision of zero deficiency.” Order, at p. 6. (Emphasis by the Court).

As for the subpoena, Vic & Kim didn’t proffer the witness and mileage fees required by Rule 148, asked for the documents to be produced at IRS counsel’s office and not at the courtroom at trial, and was overbroad because it included requests for documents relating to the out-of-jurisdiction year. Anyway, it’s moot as the out-of-jurisdiction year is off the table, and the in-jurisdiction year is moot.

Tax Court – the “sixty-buck ticket to justice” – is a first-class minefield.

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