Attorney-at-Law

“WITHIN YOU, WITHOUT YOU”

In Uncategorized on 06/13/2019 at 18:04

Aldo V. Fonticiella, 2019 T. C. Memo. 74, filed 6/13/19, has four (count ‘em, four) lawyers to IRS’ two, for an historical sashay through the Officer ranks of the United States and the US Tax Court, and echoes the immortal words of the Fab Four. Appeals is within the IRS, so Aldo is out.

For Tax Court antiquarians, Judge Joel (“The History Guy”) Gerber has a special treat.

And you Tax Court groupies will find this the best thing since Dubroff’s & Hellwig’s “The United States Tax Court – An Historical Analysis,” as to which see my blogpost “Extra, Extra – Real All About It,” 6/23/15.

Aldo (that’s Doc Aldo to you) is an AR cardiologist, who claims Appeals violates separation of powers. So the CDP he got is bogus.

“Petitioner moves this Court to declare that Appeals is an unconstitutional de facto independent agency, which violates the separation of powers doctrine, and separately seeks to have the Court remand his case to Appeals on the basis that the Appeals settlement officer who reviewed his case was an ‘Officer of the United States’ and was not constitutionally appointed in a manner consistent with the Appointments Clause.  The facts and analysis presented in petitioner’s motions are substantially similar to those considered by this Court in Tucker v. Commissioner, 135 T.C. 114.” 2019 T. C. 74, at p. 4.

Tax Court decomposed much brain tissue and 36 pages of text in Tucker to upend that interesting but exaggerated argument, as told by that Obliging Jurist Judge David Gustafson. And D.C. Cir. unanimously affirmed. Doc Aldo and his Fab Four do no better.

“Petitioner’s argument that Appeals is an independent agency because of references to the term ‘independent’ in connection with the function of Appeals exaggerates the meaning of independence in the context of Appeals’ function.  Although Appeals has an independent function within the IRS, it does not mean that Appeals is inherently an independent agency.  We hold that Appeals is not a de facto independent agency in accordance with the Court’s reasoning in Tucker.” 2019 T. C. Memo. 74, at p. 5.

The magic language in the 1998 Reorganization Act that gave us the Appeals we know and love today is “’an independent appeals function within the Internal Revenue Service.’  RRA sec. 1001(a)(4), 112 Stat. at 689 (emphasis added).” 2019 T. C. 74, at p. 7.

“Although Congress established an independent function within the IRS and prescribed procedures for Appeals, the use of the term ‘independent’ to describe Appeals’ function does not automatically make Appeals an independent agency.” 2019 T. C. Memo. 74, at p. 7. (Footnote omitted).

L’il Ole Appeals isn’t the SEC, the EEOC, the CFPB, and anyway, Section 7803(a) lets the President control the Com’r, and Section 7804 lets the Com’r keep Appeals strong and free.

And its AOs don’t need the Senate to bless them.

No Taishoff “Good Try”s here.

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