In Uncategorized on 03/25/2019 at 18:38

I welcome a T. C. Memo. from Judge Patrick J. (“Scholar Pat”) Urda, his first on this my blog; I look forward to many more “monuments of unaging intellect,” as a much finer writer than I put it, from that source.

Today Judge Scholar Pat has Jon Robert Ludlam and Maria Louisa Ludlam, 2019 T. C. Memo. 21, filed 3/25/19. They claim IRS messed up one year, as to which they filed two years late, preventing them from filing for the subsequent year. They got no SNOD for Year One, but got a NFTL. In Year Two, IRS gave them a SFR, as they didn’t file for the reason aforesaid. They did get a SNOD, a NFTL and a NITL for that year, and late filing hits for both years.

Jon and Maria didn’t give Appeals either a collection alternative or any information for either year. Jon and Maria timely petitioned both years. IRS conceded Year One tax and removed NFTL.

Jon and Maria claim the Year One imbroglio prevented their filing for Year Two. They admit they got the SNOD for Year Two and didn’t petition that. IRS moves for (surprise, surprise) summary J.

“In their opposition to the motion for summary judgment and their supplement to that opposition, petitioners argue that they were unable to file tax returns for [Year Two] and later years because of their dispute with the IRS over [Year One]. This argument misses the point.  The pertinent question for purposes of section 6330(c)(2)(B) is whether petitioners received a statutory notice of deficiency for [Year Two].  Such a notice–often described as a ticket to the Tax Court–gives a taxpayer the opportunity to challenge in this Court the deficiency determined by the IRS.  See sec. 6213(a).  The notice is not contingent on the filing of a return. Petitioners here received a statutory notice for their [Year Two] liability but chose not to take advantage of their chance to contest that liability in this Court.  That choice comes with consequences dictated by Congress:  Petitioners cannot take a belated bite at liability during these CDP proceedings.  See sec. 6330(c)(2)(B).” 2019 T. C. Memo. 21, at pp. 8-9. (Footnote omitted, but it’s the standard McCormick pay-and-sue).

So we come to abuse-of-discretion. And while Jon and Maria want to do as the title of this little essay suggests, that avails them not. Judge Scholar Pat brushes their argument off with “somber reasoning and copious citation of precedent” in a footnote.

“Petitioners assert that they could not file their tax returns for [Year Two] and later years because they were in a dispute with the IRS over their [Year One] liability and feared perjury charges.  Our precedent makes clear that ‘a dispute concerning a taxpayer’s liability for a prior taxable year does not constitute reasonable cause for failing to timely file a return for the current taxable year.’  Hairston v. Commissioner, T.C. Memo. 1995-566, 70 T.C.M. (CCH) 1438, 1445 (1995); see also Robertson v. Commissioner, T.C. Memo. 2000-100, 79 T.C.M. (CCH) 1725, 1729 (2000), aff’d, 15 F. App’x 467 (9th Cir. 2001).  And a taxpayer ‘cannot assert a Fifth Amendment privilege against compulsory self-incrimination to justify the failure to file any tax return at all.’  Stubbs v. Commissioner, 797 F.2d 936, 938 (11th Cir. 1986); see also United States v. Sullivan, 274 U.S. 259, 264 (1927); Thompson v. Commissioner, 78 T.C. 558, 563 (1982).” 2019 T. C. Memo. 21, at p. 12, footnote 5.

In case you’re curious, I get my title from Carroll’s Semi-Centennial, written in 1887 in praise of Carroll County, MD, by Harry J. Shellman, a New Yorker. Worthy of a Joyce Kilmer Memorial award.


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