In Uncategorized on 05/20/2020 at 12:43

I wouldn’t be at all surprised if CSTJ Lewis (“I Just Love That Name”) Carluzzo didn’t think reflexively of Milton’s great sonnet as he crafted his order in Sungmi Bang, Docket No. 16550-19S, filed 5/20/20.

Sungmi wanted innocent spousery, and petitioned a non-NOD (maybe) IRS denial. IRS did deny one year, but there are two more hanging fire. IRS’ answer says no NOD as to the two, so toss because no jurisdiction.

“Petitioner does not seem to dispute respondent’s claim that a notice of final determination for [Year One] and/or [Year Two] has not been issued to her. We point out that respondent’s failure to issue a final notice of determination in response to a taxpayer’s section 6015 election or request for relief for any given year does not, as respondent’s motion proceeds, necessarily preclude the Court’s jurisdiction over that year for purposes of section 6015 relief. See sec. 6015(e)(1)(A)(i)(II). The Commissioner’s failure to act in response to a taxpayer’s request for section 6015 relief within a certain period allows the taxpayer to seek relief here.” Order, at p. 1.

Moreover, IRS’ non-NOD rejection of the two is dubious, at best.

“According to respondent, the [Year One] and [Year Two] request was ‘declined because a requesting spouse is barred from relief from joint and several liability under section 6015 by res judicata for any tax year for which a court of competent jurisdiction has rendered a final decision on the requesting spouse’s tax liability***.’” Order, at pp. 1-2.

OK, pop quiz. Whether or not this is indeed a NOD, what’s wrong?

If you answered, “res judicata (or claim preclusion) is an affirmative defense, not a jurisdictional bar,” you get an “A”.

“As indicated above, respondent’s motion also suggests that petitioner is barred from relief for [Year One] and [Year Two] by res judicata. See sec. 6015(g)(2). The application of res judicata, however, even if appropriate, does not operate to deny the Court’s jurisdiction over [Year One] and [Year Two] in this case. Res judicata is an affirmative defense.” Order, at p. 2. (Citations omitted).

Anyway, the no-NOD defense fails, if Sungmi can show she only stood and waited the six (count  ’em, six) months law that Section 6015(e)(1)(A)(i)(II) allows IRS to forgo the NOD and let an innocent spouser simmer before they can go to Tax Court.

But since no one has put in anything about the timing, IRS’ motion to toss for want of jurisdiction is itself tossed.

And I’ll even forgive CSTJ Lew for that “and/or” above.


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