Attorney-at-Law

WAS JUSTICE SCALIA RIGHT?

In Uncategorized on 12/17/2019 at 00:18

More than once before now have I repeated the remark of the late Justice Antonin Scalia, which he made at the last but one Tax Court Judicial Conference dinner. Justice Scalia likened U. S. Tax Court to a town traffic court. I thought the remark a bit rich at the time, as he had just finished eating USTC’s food, but with time comes reflection, and I can’t say he was wrong.

Now Ch J Maurice B (“Mighty Mo”) Foley is not conspicuously douce when it comes to wits, wags and wiseacres. Neither is he overly coy when confronted by any thereof, or wannabes.

So perhaps he was unaware of the track record of Barbara A. Kupersmit & Harold R. Kupersmit, Docket No. 17568-19, filed 12/16/19. If my readers are similarly situated, please to see my blogpost “They Also Serve,” 8/7/15, which encapsulates Barb’s previous jousts with IRS at The Glasshouse on Second Street, NW.

Howbeit, Ch J Mighty Mo is in his characteristic tossing mode, granting IRS’ motion to dismiss for want of jurisdiction. So he begins with a two-page catalogue of bases for Tax Court jurisdiction. Then comes Barb’s story.

“Petitioners were served with copy of respondent’s motion, and…filed what would appear to be a largely inscrutable collection of random documents referring to various tax years. As such, petitioners did not deny the jurisdictional allegations set forth in respondent’s motion, i.e., petitioners did not claim or show that the IRS had sent a notice of deficiency or determination or any other relevant notice for [year at issue].

“Thus, the record at this juncture suggests that petitioners may have sought the assistance of the Court after having become frustrated with attempts to work administratively with the IRS but that the petition here was not based upon or instigated by a specific IRS notice expressly providing petitioners with the right to contest a particular IRS determination in this Court. Suffice it to say that no IRS communication supplied or referenced by petitioners to date constitutes, or can substitute for, a notice of deficiency issued pursuant to 6212, I.R.C., a notice of determination issued pursuant to sections 6320 and/or 6330, I.R.C., or any other of the narrow class of specified determinations by the IRS that can open the door to the Tax Court, as of the date the petition herein was filed. Instead, petitioners’ apparently expansive view of the Court’s authority fails to comport with the limited nature of the jurisdiction set forth in the statutory parameters set forth above.

“In conclusion then, the Court on the present record lacks jurisdiction in this case to review any action (or inaction) by respondent in regard to petitioners’ [year at issue] taxes (or any other year). Congress has granted the Tax Court no authority to afford any remedy in the circumstances evidenced by this proceeding, regardless of the merits of petitioners’ complaints.” Order, at p. 3.

OK on the law. Except.

For the tenth time (or am I off in my count?), there is no statutorily mandated form of SNOD. It’s only type of tax (income, gift, estate, excise), year, and amount, plus “a notice to the taxpayer of the taxpayer’s right to contact a local office of the taxpayer advocate and the location and phone number of the appropriate office.” Of course, if the notice is missing, does that invalidate the SNOD? Or is that just “a mere procedural irregularity”?

As the late great Professor Siegel of Albany Law School often remarked, “I’d love to know the answer…in S. E. C….Someone Else’s Case.”

Lest I be misunderstood, I’m not saying that Barb and Hal are, or are not, injured innocents, nor that they are, or are not, gameplaying rounders. Without seeing all the papers, there’s no way I can say.

But their expansive view of Tax Court jurisdiction is not theirs alone; there are plenty of really injured innocents who have shared that view and come to grief. So maybe Justice Scalia was not decrying Tax Court, but the Congressional straitjacket that so confines it.

 

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