Judge Elizabeth A (“Tex”) Copeland warns Aaron G. Filler, Docket No. 23581-17, filed 4/29/20*, that he can’t relitigate his NOL for the year at issue, but both he and IRS can put in papers post-trial and post-briefing to show when IRS first breathed the “P” word.

That’s “P” as in penalties. Aaron contested these on trial and on brief, but that was before Clay and Frost. For those who tuned in late, for Clay, see my blogpost “Indians Not Taxed – Not!” 4/24/19. For Frost, see my blogpost “Burdens Heavy to Bear” – Part Deux,” 1/7/20.

So it’s time to set the record straight, which means maybe a reopener to establish “…whether petitioner received, prior to the…supervisory approval date, a 30-day letter or similar communication of an intent to assert a penalty as to [year at issue] and a right to appeal that penalty.” Order, at p. 2.

Now the rule for Boss Hossery is taxpayer challenges the chops from the getgo, whereupon IRS gets either burden of production (per statute) or burden of proof (per judicial interpretation) (and if you can see this practically otherwise than as a distinction without as difference you’re a better lawyer than I am). Once IRS shows dates of first communication of chops to taxpayer and Boss Hoss sign-off, petitioner can refute them, if they can.

But lest Aaron become elated, Judge Copeland has a warning: “We caution petitioner that this is not an opportunity to readdress IRS approval of his … net operating loss, and that section 6751(b) does not require the IRS to notify taxpayers of the intention to impose a penalty before taxpayers waive their appeal rights. In fact, if petitioner was unaware that the IRS intended to impose a penalty at such time, then that supports respondent’s position as to the section 6751(b) issue.” Order, at p. 3.

So, folks, out with your papers.

And thanks, Judge, for designating this order. I’d thought of blogging it, but the Anderson order absorbed a lot of oxygen. Now I see the significance.

*Aaron G Filler 23581-17 4 29 20