Attorney-at-Law

DE NOVO? RECORD RULE?

In Uncategorized on 05/15/2020 at 15:27

It’s been attributed to Mark Twain that “No one’s life, liberty or property is safe while the Legislature is in session.” Whoever said it, it goes double for Congress.

That Obliging Jurist, Judge David Gustafson, has another conundrum, although this time he’s on the receiving end. Doris Ann Whitaker, Docket No. 4899-18, filed 5/15/20, is in pitiable state. She filed MFJ, but being a high-school dropout working as a nurse’s aid (sic; see Order, at page 1; I think you meant “nurse’s aide,” Judge), she thought that meant she was responsible only for her own tax, and was overwitheld.

Alas, she was wrong. She was also on the hook for $3700, being tax, interest and penalties for deadbeat, drug-addict spouse.

Doris wants innocent spousery, but since her case doesn’t fit into IRS ‘ “…sensible grid of criteria (see Rev. Proc. 2013-24), the IRS determined, in a ‘Final Determination’ (Doc. 1, attachment), that Ms. Whitaker is not entitled to relief under section 6015. Ms. Whitaker then filed her petition, asking this Court to review that determination pursuant to section 6015(e)(1).” Order, at p. 2.

Doris didn’t help herself by failing to respond to a document request or an IRS motion to toss for want of prosecution. Doris wanted a continuance for health problems.

Nevertheless, as this is Judge Gustafson, whose obliging nature goeth not merely the twain but pulls a mini-Marathon, “(W)ith the Court’s encouragement, counsel for the Commissioner stated that the case is susceptible of being resolved by summary judgment, and we ordered a schedule for the filing and briefing of that motion. The Commissioner filed a motion for summary judgment that argues that ‘there remains no genuine issue of material fact for trial’.” Order, at p. 2.

Well, MFJ means joint. Except.

“She apparently knew that her husband had income, but she did not know that she was filing a return of the sort that must report his income. Her education and resources may have contributed to that misunderstanding.” Order, at p. 2. So maybe this is a fact. Howbeit, Judge Gustafson asks both parties to ponder this in their future filings.

And while they’re pondering, Judge Gustafson does some pondering his own self.

“However, when we set up the schedule for summary judgment … we did not have in mind the relatively recent amendment reflected in section 6015(e)(7). Prior to that amendment, we would have expected that, if we discern a disputed issue of fact in a motion for summary judgment, we would then deny the motion and hold a trial at which we would decide that disputed issue of fact. But now section 6015(e)(7) directs that the Secretary’s ‘determination made under this section shall be reviewed de novo by the Tax Court and shall be based upon– (A) the administrative record established at the time of the determination, and (B) any additional newly discovered or previously unavailable evidence.’ This might mean that we already have before us in the current record all of the evidence that we should review to decide the case—but we do not know that. The Commissioner’s declaration… does not state whether the documents it contains are the full administrative record.” Order, at pp. 3-4.

Even so, does Section 6015(e)(7) mean that, when handling a Rule 121 on-the-papers, if there’s a disputed fact question the Court should decide it then and there?

But wait.

“However, only one party (the Commissioner) filed a motion. We have the discretion to construe an opposition to a summary judgment motion as a cross-motion for summary judgment, but only where ‘the court provides adequate notice to the parties and adequate opportunity to respond to the court’s motion’, 11 James Wm. Moore et al., Moore’s Federal Practice ¶ 56.10[4][a][I] (3d ed. 1997), and here we gave the Commissioner no such notice that we would treat Ms. Whitaker’s opposition as a cross-motion.” Order, at p. 5. So IRS’ summary J motion is denied, without prejudice. Only let IRS certify as to the completeness of the admin record before the Court, or supplement what’s there if it isn’t complete. And move for summary J based on the certified record.

Oh, and Doris can “…file (1) any objections she has to the administrative record that the Commissioner has filed, and (2) a response to his motion and a cross-motion for summary judgment.” Order, at p. 5.

Except I’m sure Judge Gustafson knows the immediately foregoing hereinabove paragraph (as my high-priced colleagues would say) might as well be written in Old High Glagolithic buchstabe as far as Doris is concerned.

So he tells Ms. Servoss and her minions to send Doris “ another copy of the ‘clinic letter’” she already got, and please to get help from a LITC. Or call Judge Gustafson.

He’ll turn off the headlights.

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