Attorney-at-Law

WAGNER AND SECTION 6702

In Uncategorized on 12/16/2019 at 20:55

A gambit played by frivoliters confronted by SFRs is to duck the resulting SNODs, and save the protester jive for the timely filed CDP for the ensuing NFTL and timely filed petition therefrom. Then, as trial approaches and the “light at the end of the tunnel” is the oncoming IRS express, pull a Wagner and move to dismiss. Whereby the frivoliter has bought a couple years’ time (hi, Judge Holmes) via a temporary stay on collection that no judge would grant in Federal or State court.

Wagner, you’ll recall, says a petitioner can successfully move to dismiss his/her own petition in a Section 6320 or 6330 CDP, because Section 7459 doesn’t mandate decision for IRS, unlike a petition from a SNOD.

But William J. Jaxtheimer, 2019 T. C. Memo.164, filed 12/16/19, also contests the three (count ‘em, three) Section 6702 frivolous return chops he got for a year other than the years for which he received SFRs and SNODs and, unlike the usual Wagnerian, can’t get away from Judge Pugh like that.

At his CDP, Bill Jax never contested the liabilities for the three SNOD years, only claiming the income tax doesn’t apply to him. Judge Pugh blows that off.

But he does contest the Section 6702 chops, for the three (count ‘em, three) returns he filed for the same non-SNOD year. As we know, those are assessables, so no SNOD necessary, wherefore no chance to contest. Bill Jax responds to those with more frivolity.

But IRS drops the ball. At trial, they haven’t got Bill Jax’s actual all-zeros returns for that year, only the three Forms 8278, Assessment and Abatement of Miscellaneous Civil Penalties, all dated the same date and prepared by the same person and countersigned by the same manager, with different signature dates, and “Argument Code” for all-zeros returns. This gets by the Section 6751(b)( Boss Hoss hurdle.

So Judge Pugh can’t tell if there were three original returns or if one or more was a photocopy. Remember Gwen Kestin? What, no? Then see my blogpost “From the Serious to the Frivolous,” 8/29/19.

So Bill Jax gets only one Section 6702 chop, with a yellow card for a Section 6673 chop if he tries this again. And the NFTL for the three SNOD years is sustained.

 

 

 

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