Attorney-at-Law

A CANARD

In Uncategorized on 12/11/2019 at 18:42

It’s not a good day for IRS. First Judge Goeke is less than charitable toward their arguments in Joyner (see my blogpost “We Don’t Need No Installment Method,” 12/11/19).

Now Judge Buch is on their case, twice, in Anthony I. Provitola & Kathleen A. Provitola, Docket No. 12357-16, filed 12/11/19.

First, IRS wants to bring electronics into the Jacksonville courtroom on Monday. But the local courthouse has its own limits on electrons (other than free-floating ions). However, Judge Buch has independently squared that away. But IRS calls its motion “Unopposed.” Order, at p. 1.

“Separately, we note that, in contrast to the title of the motion, paragraph 5 of the motion states:

“’5. Respondent called petitioners to determine their views on this motion, and left a voicemail message. Petitioners did not return this call as of the date of the motion, and as a result, petitioners’ views on this motion are unknown.’

“The title of the motion (characterizing the motion as ‘unopposed’) is either misleading or false.” Order, at p. 1.

But Judge Buch is in a mellow mood, so he just tosses the motion as moot, since he made the electronic arrangements himself.

Now don’t go away, because here’s the canard. Same parties, Docket No. 16168-17, filed 12/11/19.

IRS filed “a motion in limine asking that we ‘exclude all facts, evidence, and testimony not related to the circular flow of funds between petitioners, their Schedule C entity, and petitioner Anthony I. Provitola’s law practice.’

“According to the parties’ pretrial memoranda, the Provitolas attempted to develop and market something, what exactly is unclear. In connection with that something, the Provitolas, perhaps through entities controlled by them, purport to have made payments to a law firm run by Mr. Provitola.

“The parties’ arguments are easily summarized: the Provitolas argue that they have a bona fide business; the Commissioner argues that this is all a sham and there is no real business. Based on prior testimony from Mr. Provitola, it appears that he intends to testify about development and marketing of the something underlying the Provitolas purported business.” Order, at p. 1.

But ya gotta love IRS counsel’s go-for-broke motion practice.

“One might recharacterize the Commissioner’s motion as asking the Court to prohibit testimony inconsistent with his theory of the case. We will issue no such order.” Order, at p. 1.

IRS counsel argues that courts routinely ignore self-serving testimony. True, except.

“The canard that Courts disregard self-serving testimony is simply false. We disregard self-serving testimony when there is some demonstrable flaw or when the witness does not appear credible. If we were to disregard testimony merely because it is self-serving, we would disregard the testimony of every petitioner who testifies in furtherance of their own case and of all the revenue agents or collections officers who testify that they do their jobs properly, because that testimony would also be self-serving.” Order, at p. 2.

If IRS counsel is unhappy when Anthony tells his tale on the stand, he can object. Of course, he can also cross-examine.

IRS counsel, whom I’ll call Randy, didn’t have a good day.

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