While Judge Gale is sympathetic to a 78-year old petitioner who received a brain injury from a fall (and having survived such when some years younger, I can tell you as the car advertisements do, do not attempt), he sees a hint of the Hidden Spouse trick in James A Malone, Docket No. 13892-19, filed 8/27/20.

The status reports so far state that Appeals, tired of waiting for some information from Mr M, sent the file back to IRS counsel; Mr M’s counsel states that “family members” are helping Mr M find the stuff, and they hope to settle. But the status reports aren’t consistent, some numbers differ, and some issues from the SNOD aren’t addressed.

Mr M’s brain injury troubles Judge Gale. Might could be time to go to the bullpen for a next friend, especially as the trial prep seems to be stalled.

And Mr M filed MFS for the year at issue.

“…the Court is also concerned by petitioner’s counsel’s related assertion that unidentified members of petitioner’s family are “assist[ing] him in retrieving and organizing documents needed for this matter”, insofar as it raises the question of whether such family members may have a potential conflict of interest in this case. The notice of deficiency indicates that the filing status on the substitute return filed for petitioner for [year at issue] is married filing separate. In the event petitioner were to challenge respondent’s determination of his filing status by submitting a joint return with his spouse for [year at issue], petitioner’s spouse may have a conflict of interest in this case, unless he or she disavows section 6015 relief.” Order, at pp. 3-4. (Footnote omitted, but read it; it’s the playbook for the Hidden Spouse trick).

OK, I know you won’t go look at the order just to read the footnote, so here it is.

“See Millsap v. Commissioner, 91 T.C. 926 (1988) (holding that a taxpayer is entitled to challenge the Commissioner’s determination of filing status in a deficiency proceeding and that substitute returns filed by the Commissioner do not constitute ‘separate’ returns for purposes of sec. 6013(b)); see also Saltzman & Book, IRS Practice and Procedure, para. 4.02[1][b] (Rev. 2d ed. 2002 & Supp. 2020-1) (‘Similarly, for purposes of making an election to file a joint return, the Section 6020(b) return is not the taxpayer’s return when the taxpayer makes an election on a subsequently filed return. As a result, when the Service prepares a Section 6020(b) return for each of two spouses as married filing separately, and sends them a notice of deficiency, the husband and wife may petition the Tax Court, file a joint return, and challenge the Service’s determination of their fling status in the same manner as they contest the amount of the deficiency.”) (citing Millsap v. Commissioner).” Order, at pp. 3-4, footnote 10.

So Judge Gale orders the parties to dish on next friendliness, spousal situation, conflicts of interest, and what gives with every determination in the SNOD, including but not limited to chops.

For more about the Hidden Spouse trick, see my blogpost “Hidden Spouse,” 4/3/18.