We have all been taught that there is no prescribed form of SNOD. The notice, be it called whatever, must state tax type (income, excise, estate, gift), year, amount of deficiency, and “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.” Section 6212(a).

Now whether the TAS notice is a separate document, or includible in the text of the SNOD, is nowhere stated. Neither is the absence of the TAS notice expressly stated to be a jurisdictional defect, or a mere procedural irregularity, curable whenever.

That said, today we have Muhammad Ishaq & Rahat Sultan Ishaq, Docket No. 13309-19, filed 7/31/20, a designated hitter from Judge Albert G (“Scholar Al”) Lauber. Mu & Ra can’t find the SNOD they petitioned.

“In their petition petitioners checked the box stating that they were disputing a “notice of deficiency” and listed the date of the notice as June 28, 2019. The document they attached to their petition was dated June 28, 2019, but it was not a notice of deficiency. Rather, it was a Letter 555 which stated, ‘We previously sent you a Notice of Deficiency.’ The letter indicated that petitioners had submitted additional information to the IRS but that the IRS ‘did not make changes to the tax increase we proposed previously because the information you sent us did not justify a change.’ The letter informed petitioners that ‘[t]he last date to petition the Tax Court is July 19, 2019.’ This suggests that a notice of deficiency was sent to petitioners 90 days previously, i.e., on April 19, 2019. The letter showed a $15,821 balance due (including penalties and interest accrued to June 28, 2019).” Order, at p. 1.

Well, Mu & Ra petitioned July 17, 2019, so they’re timely, no? No, because neither IRS, nor Mu, Ra, or their trusty accountant, can find the SNOD.

Anybody but I remember Oola Mar & Marlin D. Johnson? No prize if you do, but you certainly pass the cognitive impairment exam. The rest of you, see my blogpost “Fake Out,” 12/14/16. It seems IRS gave Oola Mar & Marlin a Letter 4314C, which likewise said that IRS sent a SNOD, except sometimes IRS didn’t and STJ Lewis (“Great Name”) Carluzzo didn’t mind. Apparently Letter 555 is Letter 4314C’s little brother; or maybe not.

Judge Scholar Al is not going to try to figure this out. Dismissed for want of jurisdiction.

But wait, there’s more.

“In his supplemental response respondent noted that the IRS had issued to petitioners identical Notices CP21E dated February 24, 2020, which showed that they had a balance due of zero for 2017. Respondent explained that these Notices reflected the reversal of a premature assessment of the 2017 liability that the IRS had made on September 2, 2019. According to respondent, the Notices CP21E do not constitute a determination by the IRS that petitioners are not liable for a deficiency and penalty for 2017. Respondent accordingly believes that a ruling on his Motion to Dismiss for Lack of Jurisdiction ‘remains necessary to resolve this case.'” Order, at p. 2, footnote 1.

So IRS can hit Mu & Ra with a SNOD, as SOL hasn’t run (calendar 2017 tax due date was April 17, 2018).

And taxpayers can magically ascertain if a SNOD was really sent, because IRS may just be playing one of its little tricks when it says one was sent that they can’t find.

Today the new, only-marginally-improved, jazzy Tax Court website carries this announcement:

“On Monday, August 3, 2020, the Court will be performing a circuit upgrade from 4:00 PM to 5:00 PM Eastern time. There may be a brief disruption to eAccess and this website.”

Why not Friday evening around 8:30 p.m.? Why shut down when bloggers, petitioners, practitioners, and students are checking for opinions and designated hitters ? If the “contractors” who have foisted this shambolic lash-up on us taxpayers were unaware that opinions and designated hitters get released at 3:30 p.m., could not someone from the Clerk’s office or Public Affairs have gently suggested that these genius barflies attempt to mitigate, if not eliminate, the disruption this will cause?

And next time it is decided to fuss around with the website, which I hope will not be in my lifetime, why not ask the users, the taxpaying public who are paying for this shemozzle, to weigh in with some rational suggestions?

It used to be that Judge Buch discommoded more electrons when telling a pro se that dismissing a petition, otherwise than for want of jurisdiction, means IRS wins.

Compare and contrast my blogpost “Without Prejudice = Extreme Prejudice,” 7/6/16, with Martin William Joyce, Docket No. 1016-19, filed 7/31/20.*

Yes, I know, there was a NOD in the ’16 case, and a SNOD here, but mox nix. The time to petition either NOD or SNOD is long gone by the time a motion to dismiss is granted. And that is so in a Whistleblower (if anyone could figure out when the actual rejection by the Ogden Sunseteers took place). See my blogpost “Prejudice? No Prejudice? Mox Nix,” 8/31/18.

If you have an idle moment, check out Section 7345(e): if there’s no statutory time limit on petitioning a passport grab, why can’t a petition from such not be dismissed without prejudice?

Back to our game, as the chess analysts say.

Judge Buch once again cites Hank Black’s law dictionary and Section 7459(d). Maybe because this is a SNOD case and not a NOD case, Judge Buch can dispense with the “too late to refile” discussion.

“If Mr. Joyce wishes to concede his case, he may enter into a stipulated decision with the Commissioner agreeing to the adjustments, or he may refile his motion to dismiss, making clear that he intends that the dismissal would be with prejudice.” Order, at p. 1.

In any case, Mr Joyce’s motion is tossed. With prejudice.

*Joyce 1019-16 7 30 20

I can hear in my mind’s ear the gravelly rasp of Conrad Veidt as I read AG Processing, Inc. A Cooperative and Subsidiaries, Docket No. 23479-14, filed 7/31/20. Somebody wants to see a bunch of documents from the trial and post-trial; see my blogpost “A Hill of Beans,” 10/16/19, for the backstory.

You’ll surely recollect that Tax Court threw open the Copywork Office at the end of May. No? Then see my blogpost “On the Record,” 6/1/20.

Well, today Judge Elizabeth Crewson Paris has a bunch of unnamed nonparties who want copies of “…docket entries 32 (respondent’s Pretrial Memorandum), 37 (First Stipulation of Facts with attached exhibits), 47 (parties’ Joint Status Report), and 49 (parties’ Joint Status Report).” Order, at p. 1.

The docket search says this is an order for a status report, except it’s really more than that. Apparently, the Rule 155 beancount has been on hold since January, so maybe settlement is in the wind. In any case, decision has not yet been entered.

Howbeit, before Judge Paris is willing to let the anonymous paper-chasers get paw on paper, let IRS and the AGs “inform the Court whether the above-referenced documents have been properly redacted in compliance with Tax Court Rule 27 or are otherwise subject to claims of confidentiality or nonrelease.” Order, at p. 1.

Paper-chasers, take note. What you get may be a lot less than you asked for.

Judge David Gustafson obliges Daniel E Larkin & Christine L Larkin, Docket No. 6345-14, filed 7/30/20, with a rehash and drill-down of their earlier loss. See my blogpost “Limits,” 6/28/20. Dan & Christine fare no better this time around. The return Dan handed the RA wasn’t “filed,” that is, sent to the proper Service Center, but that only helps Dan & Christine duck the Section 6662(a) accuracy chops. And as for foreign tax credit, Dan still is playing the Michael Corleone gambit.

Judge Patrick J. (“Scholar Pat”) Urda has an opinion, Carol Joy Biggs-Owens, 2020 T. C. Memo. 113, filed 7/30/20. This case should have been titled “Lose Your Case at CDP.” I don’t know if CJ had her trusty attorney with her at the CDP. Judge Scholar Pat makes no mention of an attorney or representative, other than one accountant who could not help and another newly engaged who apparently played no part. True, there’s less than $75K on the table when Carol Joy petitions the NOD, as near as I can reckon; I leave it to my CPA colleagues to come up with better numbers.

But if you’re going to the expense of hiring counsel for the Tax Court hearing, you’d be best advised to have said trusty attorney with you the moment you send in Letter 12153 to Appeals. Because, when you do, you’d better start assembling every piece of paper, corralling every electron, and rounding up every witness, to tell and verify your said tale why you need a collection alternative. If you don’t make a strong showing at the CDP, Tax Court has little room to help you.

Judge James S (“Big Jim”) Halpern has troubles with SO PS (Name omitted). SO PS may have been a trifle hasty when she signed off on the Section 6702 frivolity chops portion of the NTFL IRS gave Sheila Ann Smith, Docket No. 1312-16L, filed 7/30/20. So Judge Big Jim makes a designated hitter out of it, and ships Sheila Ann and IRS back to Appeals.

“Also stipulated, but not among the documents stipulated to constitute the administrative record in this case, are six Forms 8278, Assessment and Abatement of Miscellaneous Civil Penalties. Respondent has assessed six section 6702(a) penalties of $5,000 each with respect to six purported income tax returns received from petitioner: two returns for each of 2008 and 2010 and one for each of 2009, and 2011. The six Forms 8278 are: one for each of the two 2008 and two 2010 purported returns and one for each of the 2009 and 2011 purported returns.” Order, at p. 2.

IRS puts in the six 8278s as proof of Boss Hossery.

Except.

“On three of the forms, the Originator blocks are signed but the signatures (similar) are indecipherable, and the originator is not otherwise identified. On five of the six forms, a printed name appears in the Manager block and the form is signed with that name in the Reviewer block. On one form, the name in the Manager block differs from the signature in the Reviewer block.” Order, at p. 3.

As the Forms 8278 never got into the administrative record, they prove nothing.

“The Forms 8278 are not among the documents stipulated to constitute the administrative record in this case, and, because our abuse-of-discretion review is limited to the administrative record, we do not take them into account in determining whether SO PS verified section 6751(b)(1) compliance. Moreover, even were the Forms 8278 among the documents that constitute the administrative record, those forms alone are insufficient to verify section 6751(b)(1) compliance.

“The penalty approval requirement in section 6751(b)(1) is particular, allowing assessment of a penalty only if the initial determination of the assessment is personally approved in writing by either ‘the immediate supervisor’ of the individual making the initial determination or a designated higher level official. The Secretary has not designated any higher level official for purposes of section 6751(b). Consequently, the statute requires the written approval of the immediate supervisor of the person making the initial determination. We have held that a Form 8278 is adequate to satisfy the written approval requirement when the form was prepared by the examining agent and signed by the immediate supervisor before assessment of the penalty.” Order, at p. 3 (Citations omitted). (Emphasis by the Court).

And while there may be a Manager and a Reviewer in on the tackle, IRM pt. 20.1.1.2.3(8)- Managerial Approval for Penalty Assessments (11-25-2011) (applicable to the Forms 8278) lists conditions for entry in the Boss Hoss stakes. An IRS employee’s immediate supervisor is the one who does the performance evaluation and approves the employee’s leave requests. Generally.

But the 8278s fall short. So back to Appeals they, IRS, and Sheila Ann must go.

Judge Big Jim cites the case of Dean Matty Vigon. All y’all doubtless remember Dean Matty. What, no? Then check out my blogpost “Crafty – Akin to the Weasel,” 7/24/17.

And to save you the trouble of looking up yet another of my blogposts, here’s the story of the robosigners. When the subprime mortgage debacle exploded and foreclosures rained from the skies, we dirt lawyers saw a flurry of ‘robosigners,’ junior clerks given titles above their pay grades who signed affidavits and pleadings at the rate of ten a minute, with flailing notaries at their elbows stamping their nights away. None had any idea what they were signing or to what they were swearing. Eventually these got torn up in court, as the pro bonos and the defendants’ wolfpack deposed the signers.

There greeted me this morning, as I started my daily trawl through the Tax Court fishing grounds, a remarkable set of videos, showing Tax Court in action. One shows CSTJ Lewis (“Broadcast That Name to the Stars”) Carluzzo on trial; positively riveting. Ch J Maurice B (“Mighty Mo”) Foley is a showrunner with the winning touch.

Check out the goodies. There are views of calendar call, breakout rooms (I thought these were to be found only in maximum security FCIs), and more.

Now all I need is the electronic equivalent of a press pass to see the trials. Or maybe post the videos so we can see them on the same day.

How ’bout it, Tax Court techies?

When it comes to money, other than a deposit clearly so denominated, it’s dealer’s choice with the IRS; IRS’ discretion is far, wide and broad. And Section 6330 avails not when Greene-Thapedi is on the job.

Today STJ Daniel A (“Yuda”) Guy provides a designated hitter reminder for Brian Dean Swanson, Docket No. 15964-19L, filed 7/29/20. Brian Dean filed a 1040X for Year One, which earned him the thirty-day frivolity yellow card. On day thirty-one, or shortly thereafter, IRS chopped Brian Dean with the Section 6702 $5K.

Brian Dean never paid the chop, nor the tax he owed for Year Two. IRS gave him a NITL for both the chop and the tax at no extra charge, which he appealed. Appeals sustained the NITL, so Brian Dean petitions the NOD.

Brian Dean wants to invoke Section 6751(b) Boss Hossery for the Section 6702, and claims he had a refund coming for Year Three, which should be applied to the tax he owes for Year Two.

Clear? Thought not.

But IRS shortstopped the Year Three refund and applied it to the Year One Section 6702 chop. Wherefore IRS claims so much of Brian Dean’s summary J motion as relates to the Section 6702 chop is moot. And Brian Dean is hanging for Year Two tax.

STJ Yuda agrees.

“As a preliminary matter, overpayments by a taxpayer may be applied to other tax liabilities of the taxpayer at the discretion of the IRS. Sec. 6402(a), sec. 301.6402-3(a)(6)(i), Proced. & Admin. Regs….. As mentioned above, the IRS applied petitioner’s overpayment for [Year Three] to fully offset the section 6702 penalty assessed for [Year One]. Given the IRS’s broad discretion, petitioner’s assertion that his [Year Three] overpayment should have been applied to his outstanding tax liability for 2015 is misplaced.” Order, at p. 3. (Citations omitted).

And once an obligation to the fisc is satisfied, by whatever means necessary, pore l’il ole Tax Court has no jurisdiction, even if the Supremes suggest they might have a wee bit more.

“Although the Tax Court is an Article I rather than an Article III court, the Supreme Court has held that the Tax Court exercises Federal judicial power. Freytag v. Commissioner, 501 U.S. 868, 890-891 (1991). For present purposes, a case filed pursuant to section 6330 is moot if the Federal income tax liability that the Commissioner is attempting to collect has been paid in full so that no collection action is appropriate.” Order, at pp. 3-4. (Citation omitted, but it’s Greene-Thapedi).

Once again, frivolity is its own reward.

Tax Court seems to be taking its summer break. Today is Day Three without an opinion.

Of course, Ch J Maurice B (“Mighty Mo”) Foley is toiling mightily among the weeds, expending much “somber reasoning and copious citation of precedent” upon such dross as Jess Yates & Melissa Yates, Docket No. 1991-20, filed 7/29/20, wherein Jess & Melissa try to relitigate a SNOD and a NOD relating to 2006, both of which were litigated and affirmed on appeal to 4 Cir three years ago. Maybe stay-at-home orders have induced people to find some way of filling up their enforced leisure.

And the Great Pandemic has compelled teletrials, from which the press and public are barred in violation of Sections 7458 and 7461. Wherefore your blogger, absent prior intervention by the Glasshouse techies, will be unable to bring you the first breaking news about the expert testimony of that peripatetic guardian Mr. Guanghua Yin.

I’m sure by now my readers are on a first-name basis with Mr. Yin, after my blogposts “Come From Away – Chinesischen Art,” 2/21/19, “Method May Be Madness,” 7/27/20, and “The Long Arm of Judge Scholar Al,” 7/28/20.

Mr. Yin’s tell-all was set for the end of August here in The Apple, but COVID-19 rained on that parade.

So Judge Albert G (“Scholar Al”) Lauber has rescheduled the trial in WT Art Partnership LP, Lonicera LLC, Tax Matters Partner, et al., Docket No. 28440-15, filed 7/29/20. Unhappily, Mr. Yin’s testimony is off until January, and then remotely. The second half of the trial is off until sometime in the Spring, maybe remotely, but we’ll have to see.

Until the electronic veil is lifted, we’ll have to make do with Antiques Roadshow reruns for appraisals of Chinese art.

I was settling down with a cold Cuba Libre on a hot New York summer night, when I noticed someone had checked out my old blogpost “Come From Away – Chinesischen Art,” 2/21/19. Refreshing my recollection, I saw that, like a much more exalted personage, I doubted excessively back then.

I doubted that Mr. Guanghua Yin, now or formerly of Wangfujing Street, Dongcheng District, Beijing, would show up on Rhode Island Street in The City by the Bay, just because Judge Albert G (“Scholar Al”) Lauber asked politely.

Oh ye of little faith!

See my blogpost “Method May Be Madness,” 7/27/20. Mr Guanghua Yin not only showed at some point, but he was the star witness.

Never doubt the long reach of Tax Court Judges.