Attorney-at-Law

LAWYERS CAN’T ADD – PART DEUX

In Uncategorized on 09/27/2019 at 16:42

Once again I repeat the old tale.

Here’s Wendell C. Robinson & May T. Jung-Robinson, Docket No. 6446-19L, filed 9/27/19, from the wordprocessor of that Obliging Jurist, Judge David Gustafson, again helping out a tired old blogger with a designated hitter.

Wendell & May want partial summary J in this CDP. They don’t get it.

“The Robinsons’ motion shows that they reported on their [year at issue] tax return an income tax liability of $88,721.91 and paid that liability by withholding and by a check that accompanied the return. They argue that their… liability has therefore been paid in full, that the statute of limitations (section 6501(a)) bars further assessments, and that the proposed levy to make further collections … cannot be sustained.” Order, at p. 1.

IRS’ riposte seems to have a minor arithmetic glitch.

“However, the Commissioner’s response shows that the Robinsons’ return reflected six mathematical errors, that their correction increased the Robinsons’ tax liability by $13,267.20 to a total of $88,721.91, and that this larger total was timely assessed…. The Commissioner explains that these mathematical errors were corrected as such pursuant to section 6213(b)(1), which provides for a ‘notif[ication] … [that] shall not be considered as a notice of deficiency’.” Order, at p. 2.

Guys, $88,721.91 plus $13,267.20 does not equal $88,721.91. Even if you take off your gloves, your shoes and your socks, and lie on your backs with limbs in the air, $88,721.91 plus $13,267.20 does not “increase the Robinsons’ tax liability to a total of $88,721.91.”

Judge Gustafson finds issues of material facts here.

“The recitation of verification in Appeals’ notice of determination makes no mention of mathematical corrections under section 6213(b)(1), nor of whether the IRS ‘notified’ the Robinsons of such corrections in compliance with that provision so as to give them the opportunity to request abatement pursuant to section 6213(b)(2)(A) and thereby obtain the opportunity to resist the corrections under deficiency procedures. The Commissioner’s brief describes the alleged mathematical errors and cites section 6213(b)(1), but it makes no allegation about notification to the Robinsons or an opportunity to request abatement. We would expect to receive evidence on this issue in due course.” Order, at p. 2.

I would expect to see a motion to amend the answer, too.

 

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