Attorney-at-Law

TAXPAYER FIRST – MAYBE

In Uncategorized on 10/16/2019 at 16:38

Speaking of innocent spousery, Lindsey Jones, 2019 T. C. Memo. 139, filed 10/16/19, is the first go-round of the expanded scope of review in such cases, arising out of the Taxpayer First Act (TFA), Pub. L. No. 116-25, 133 Stat. 981 (2019).

Judge Ashford let in a bunch of post-hearing stuff, including “…(1) the testimonies of petitioner, her ex-husband …, and three additional witnesses for petitioner without objection from respondent’s counsel and (2) four additional exhibits proffered by petitioner.” 2019 T. C. Memo. 139, at p. 2, Footnote 2. (Name omitted).

The footnote is the most interesting part of the case, as the rest is the usual fact-bound tiptoe through the factors.

“TFA sec. 1203, 133 Stat. at 988, amended sec. 6015(e) by adding paragraph (7), which provides for the standard and scope of Tax Court review.  Specifically, paragraph (7) provides that ‘[a]ny review of a determination made under this section [sec. 6015] shall be reviewed de novo by the Tax Court and shall be based upon–(A) the administrative record established at the time of the determination, and (B) any additional newly discovered or previously unavailable evidence.’  According to TFA sec. 1203(b), this provision applies ‘to petitions or requests filed or pending on or after the date of the enactment of this Act.’

“It would thus seem that the effective date provision calls on us to apply sec. 6015(e)(7) to cases tried before that section was enacted, which would include this case.” 2019 T. C. Memo. 139, at p. 2, Footnote 2.

But even the new stuff avails Lindsey naught. She loses even after “… allowing petitioner to present her case to the fullest extent and considering all of the evidence presented….” Idem, as my contemplating-their-spit-shined-Bruno-Magli-Maiocos-atop-their-two-acre-desks colleagues would say.

But I do want to give a Taishoff “Good Try, First Class” to Jonathan T. Amitrano, Esq., and Alvah Lavar Taylor,Esq., counsel to Lindsey.

All that said, I see nothing in Taxpayer First or this case to modify my earlier-expressed view that a nonrequestor had better put in everything at Appeals, lest IRS fold on the river, leaving the nonrequestor Michael Corleone’d.

Even the Taxpayer First second-bite provision limits the wild-cards to “newly discovered or previously unavailable evidence.” The “review de novo” language seems to apply only to the usual romp through the administrative record (but how can the Court try de novo a case that exists purely on paper, thereby substituting the judge’s impressions for the AO who saw the parties, heard their voices,  and observed their body language?), plus the new-or-previously-unavailable stuff. Unless the Court stands the language on its head (as appears to have happened with Lindsey, since her ex plus the other witnesses and stuff appear neither to have been unavailable nor newly-discovered), the requestor can always object to nonrequestor wild-cards on the ground that these folks and this stuff were around and available for the hearing, so ambush.

Howbeit, I’m sure we’ll see this latest Congressional coruscation enlivening my future blogposts.

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