In Uncategorized on 10/18/2019 at 16:15

References to the Taxpayer Bill of Rights (TBOR) are immaterial and maybe frivolous, right? Isn’t that what Judge Halpern said, as more particularly bounded and described in my blogpost “The Taxpayer Bill of Goods,” 4/17/19? And as repeated, realleged and restated in my blogpost “The Taxpayer Bill of Goods – Part Deux,” 6/20/19, wherein Judge Goeke berated The Jersey Boys for raising TBOR, no?

Well, comes now Ch J Maurice B (“Mighty Mo”) Foley, who allows that maybe one can mention the TBOR, which hitherto dared not speak its name in the precincts of 400 Second Street, NW.

Here’s Estate of John Hajdukovich, Deceased, Robert M. Hajdukovich, Personal Representative, Docket No. 13752-18, filed 10/18/19.

The PersRep’s intrepid Colorado counsel “… asserts that this Court has authority to consider violations of 5 U.S.C. section 706(2) and I.R.C. section 7803(a)(3) in the course of redetermining the deficiency asserted by respondent.” Order, at p. 1. That’s the Administrative Procedures Act for one thing, and TBOR for another.

IRS has the by-now-boilerplate response. “…even if the references to 5 U.S.C. section 706(2) and I.R.C. section 7803(a)(3) are merely part of petitioner’s claim under I.R.C. section 6213(a), any references to them should be stricken from the petition on the grounds that they are immaterial or frivolous.” Order, at p. 1. So when TBOR is mentioned even in passing, IRS has gone beyond arguing “mere recapitulation of existing rights” to “immaterial or frivolous.”

Taxpayer Bill of Goods on steroids.

Ch J Mighty Mo isn’t buying…yet. A Rule 52 strike needs showing of no possible connection to case and prejudice to wannabe striker.

“Respondent did not identify any prejudice from the references in the petition to 5 U.S.C. section 706(2) and I.R.C. section 7803(a)(3). At this stage of the proceedings, we cannot clearly conclude that these references have no possible relation to the controversy. In light of the high standard governing this matter, we will deny respondent’s motion without prejudice.” Order, at p. 2.

However, lest Colorado counsel celebrate by lighting up vegetation legal in that State, thereby developing a Rocky Mountain high, Ch J Mighty Mo counsels prudence.

“The denial of respondent’s motion without prejudice should not be interpreted as an evaluation of the merits of petitioner’s assertions regarding violations of5 U.S.C. section 706(2) and I.R.C. section 7803(a)(3). The Court has recently addressed 5 U.S.C. section 706(2) in Ax v. Commissioner, 146 T.C. 153 (2016) and the Taxpayer Bill of Rights in Moya v. Commissioner, 152 T.C. __ (Apr. 17, 2019) and in Atlantic Pacific Management Group, LLC v. Commissioner, 152 T.C. __ (June 20, 2019).” Order, at p. 2.

Moya and Atlantic Pacific are covered in my blogposts above captioned. You can find the Ax case in my blogpost “A Retrieved Reformation,” 4/11/16.

Motion to strike denied without prejudice.

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