Looks like IRS is using the ubiquitous status report to short-circuit discovery in Libia Higuita Turner, Docket No. 15169-18S, filed 9/24/20.

Judge Pugh lets this pass without comment.

“…respondent filed a Status Report with attachments in the nature of evidence.” Order, at p. 1.

Judge Pugh simply orders “…respondent’s Status Report…is recharacterized as respondent’s ‘Proposed Trial Exhibits’.” Order, at p. 1.

OK, this is a small-claimer, so maybe dispensing with strict rules makes sense. But I’ve seen dozens of attempts by petitioners to attach evidence to petitions and motion papers get shot down, in cases regular and small, with the admonition to “save it for trial.”

And what price Branerton, the most revered of Tax Court sacred kine? No ““discussion, deliberation, and an interchange of ideas, thoughts, and opinions between the parties that our Rules contemplate”? See my blogpost “‘Ask, and Ye Shall Receive’,” 9/3/13.

If IRS can do it, why not petitioners? And maybe even intervenors?

Or Two

Or maybe three, but Judge Elizabeth A (“Tex”) Copeland feels that Beverly Robinson, 2020 T. C. Memo. 134, filed 9/23/20, deserves innocent spousery after her nogoodnik ex-husband welshed on the tax debt, carried on with another lady, and generally comported himself on the stand with less than candor.

Bev was a high school graduate and machine operator for a big lumber company. She knew nothing of taxes or finances. But she never claimed abuse or financial hardship on her Form 8857, or at trial.

Bev did sign and file the fictitious name form for ex’s business with FL Dep’t of State in her name, but he was on the day shift at their former employer, so only Bev could sign it. She also claimed being the boss so she could sign it. She also claimed being employed by ex’s business to “embellish” her resumé when looking for work. She was a signatory on ex-spouse’s business account but signed no checks.

And “(P)etitioner also failed to make a good faith effort to comply with the Federal income tax laws. In her Form 8857 signed days after her 2014 return was due, petitioner indicated that she knew she had an obligation to file a tax return; nevertheless she believed that it would be unfair if an overpayment from her 2014 tax year was applied against the 2010 tax liability. From this it is clear that petitioner intentionally failed to timely file her 2014 return and therefore did not make a good faith effort to comply.” 2020 T. C. Memo. 134, at p. 35.

I’ve seen innocent spouse applications bounced on that ground alone.

But Judge “Tex” Copeland cuts Bev some slack.

“On the basis of the foregoing facts and circumstances, we hold that the equities weigh in petitioner’s favor. The factors that weigh in favor of relief are marital status, knowledge, and lack of significant benefit. The factor that weighs against relief is compliance with Federal income tax laws. The remaining factors are neutral. Our decision whether relief is appropriate is not based on a simple tally of those factors. Instead the weight given to each factor is based on the requesting spouse’s facts and circumstances. As a result, when we weigh petitioner’s facts and circumstances, we hold she is entitled to relief from joint and several liability under section 6015(f) for tax year 2010.” 2020 T. C. Memo. 134, at p. 37. (Citations omitted).

And a Taishoff “Good Job, First Class,” to Bev’s trusty attorney James R. (“Good Feelings”) Monroe, Esq., whose great namesake should be a model for these times.

I’ve been around long enough to know that Sherlock Holmes got it right: “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.”

In witness whereof, we have IRS offering to extend to petitioners the same amount of time they are seeking in Lorance & Thompson, A Professional Corporation, Docket No. 13844-19, filed 9/23/20.

I’ll defer to Judge Emin (“Eminent”) Toro: “…respondent filed an unopposed Motion To Extend Time Within Which To File Response To Motion for Partial Summary Judgment (“Motion for Extension of Time”) (Doc. 13). The motion requests the Court extend the time which respondent shall file a response to petitioner’s Motion for Partial Summary Judgment, as well as the time for petitioner’s reply.” Order, at p. 1. (Emphasis added).

All y’all will recollect that I thrice called out IRS’ counsel for seeking extensions of time, or filing supplementary papers, up to, or nearly up to, the date certain when petitioners’ papers were due, and offering petitioners no additional time to respond. You don’t? Then see my blogposts “Play Nice or Go Home,” 3/20/20, “Time Sensitivity”, 4/13/20 and “Make It Easy – Maybe Not,” 8/24/20.

Judge Toro of course gives both sides additional time.

Improbable? Yes. Impossible? No. Maybe this my blog serves some useful purpose, even in such exalted precincts as 1111 Constitution Avenue, NW.

When ex-Ch J Michael B (“Iron Mike”) Thornton cut the bases on which a blower might put additional evidence into the administrative record in a Section 7623 whistleblower case from six grounds to three (count ’em, three), he certainly raised the bar.

For more details, see my blogpost “Administering Supplements,” 8/27/20.

And long-time blower Joseph A. (“Fighting Joe”) Insinga, Docket No. 9011-13W, filed 9/23/20, is the first to try to clear it.

Judge David Gustafson lists the grounds: “(1) if the agency deliberately or negligently excluded documents that may have been adverse to its decision; (2) if background information was needed to determine whether the agency considered all the relevant factors; or (3) if the agency failed to explain administrative action so as to frustrate judicial review.” Order, at p. 3.

IRS plays the John Keats gambit; the 4372 Bates-stamped pages before the Court are “all ye know on earth and all ye need to know.”

Judge Gustafson lets Fighting Joe put in whatever he’s got that isn’t in the 4372 pages. However, Fighting Joe has to show they’re not duplicative. “If any of the documents without such Bates numbers that Mr. Insinga has cited and submitted are in fact in that numbered series (but the numbers were not visible in Mr. Insinga’s submission), then he shall provide copies that do bear the numbers.” Order, at p. 4.

And Fighting Joe has to show that each of his documents falls within the ambit of one of the foregoing three grounds.

I’m sure my readers remember Judge Albert G (“Schiolar Al”) Lauber’s blow-off of the Jersey Boys, when they invoked that cat-and-mouse certify-decertify Section 7345 gambit.

What, no? The see my blogpost “Ruesch to Judgment,” 6/25/20. True, the Jersey Boys, as usual, were swinging for the fences and were out on a foul pop-up behind the plate.

But I stand by what I wrote in June. There’s no limit to the number of passport-grabbing certifications IRS can send State.

And Section 7345 makes no exception for a seriously-delinquent debt where the SOL has run on collection; even when the collection remedy is gone, nothing stops IRS from a passport-grab. Of course, there’s no SOL on when the grabee can petition the grab, either; presumably, as long as the certification is in force, the grabee can petition. And there’s no one-petition-per-grab rule either.

So here’s Ivan Rivas, Docket No. 15489-18P, filed 9/22/20. Ivan petitions two (count  ’em, two) Section 7345s, covering six (count ’em, six) tax years. Judge Colvin takes up the story.

Note the chronology. “On August 3, 2018, petitioner filed a petition with this Court seeking relief from certifications dated July 18 and November 26, 2018, which stated that under section 7345(a)1petitioner was an individual owing seriously delinquent tax debt for taxable years 1999, 2000, 2001, 2002, 2003, and 2009, collectively.” Order, at p. 1.

So somehow Ivan knew in August that, beside the grab in July, there was another coming in November. If Ivan could tell the future, he should’a gone to the online betting sites; he could’a played the dime Superfecta in every track in the country and won enough to pay off every debt he ever had before the bookies got wise.

Ivan petitions both, but IRS plays the Matty Dean Vigon gambit, more particularly bounded and described in my blogpost “Crafty – Akin to the Weasel,” 7/24/17.

“On February 11, 2019, respondent ‘mistakenly caused the reversal of the certification[s]’. The following week, on February 18, 2019, respondent issued a new notice of certification to petitioner informing petitioner that he was ‘an individual owing seriously delinquent tax debt for taxable years 1999, 2000, 2001, 2002, and 2003’ under section 7345(a). Respondent notified the Secretary of State of the new certification.” Order, at p. 1.

So Ivan is tossed for mootness as to the two certifications he petitioned. Apparently, his fortune-telling streak ended.

“The relief we are authorized to grant per section 7345(e)(2) is an order directing respondent to ‘notify the Secretary of State that such certification was erroneous.’ Because both certifications were reversed and the Secretary of State was notified of such reversals, petitioner has received all of the relief that we could grant. Ruesch v. Commissioner, 154 T.C. __, at __ (slip op. at 17). Thus, petitioners’ claims are moot.” Order, at p. 2.

So Ivan can petition the February 28, 2019 grab. And while that petition is pending, IRS can “mistakenly” withdraw that certification, and hit Ivan with a fresh one. Or Ivan can sue in USDC, where maybe a Judge has, or can find, jurisdiction to end this game.

No, not my latest Italian-while-you-wait excursion; rather, it’s summing up Judge Courtney D (“CD”) Jones’ pinning of Section 6751b) Boss Hossery on Sunil S. Patel and Laurie McAnally Patel, et al., 2020 T. C. Memo. 133, filed 9/22/20.

IRS does miss one year of the four (count ’em, four) years at issue, but get the remaining three right. Sunil and Laurie were running one of the micro-captive insurance dodges, funneling cash into a no-lose insurance company. I’ve blogged these so often before I won’t lard this narrative with “copious citation of precedent.”

Having blown off Year One for want of timely Boss Hossery (Letter 5153 and RAR before CPAF, Section 6751(b)’s equivalent of leg before wicket), Sunil and Laurie want to argue the Boss Hoss just rubberstamped the CPAFs and, in the case of Year Two, the amended answer (IRS’ counsel having gotten the Area Counsel into the act).

No go.

“When asked to conduct inquiries into whether the Commissioner’s employees gave sufficient consideration to the penalties they proposed and approved, we have determined that such lines of questioning are ‘immaterial and wholly irrelevant to ascertaining whether respondent complied with the written supervisory approval requirement of section 6751(b)(1)’. Raifman v. Commissioner, T. C. Memo. 2018-101, at *61. In sum, the ‘written supervisory approval requirement of section 6751(b)(1) requires just that: written supervisory approval.’ Id.” 2020 T. C. Memo. 133, at pp.14-15.

For the story of Greg and Sue Raifman, see my blogpost “Too True to be Good,” 7/3/18. For the chronology of the Boss Hossery in the four years in Sunil’s and Laurie’s case, read Judge CD’s opinion.

Takeaway- For Section 6751(b) Boss Hossery, timing is everything. How closely the Boss Hoss looked is nothing to the point. Taishoff says “The return of the robosigner?” They sign, you lose.

Seems a lot of scarce Tax Court judicial resources are being expended on getting anonymous blowers to redact their documents properly. STJ Diana J (“Sidealks of New York”) Leyden is getting a bunch lately.

Here’s Whistleblower 17543-19W, filed 9/21/20 (hereinafter “Three One Niner Whiskey”). Like his/her comrade Four Twenty (see my blogpost “An Unveiling,” 9/18/20), Three One Niner Whiskey got the OK to go anonymous, but never bothered redacting his/her documents to delete personally identifiable information, despite the usual two-step instruction order, and a couple IRS filings (hi, Judge Holmes) to try to remedy Three One Niner Whiskey’s miscues. Three One Niner Whiskey objects that IRS didn’t do a proper job, but some filings from Three One Niner Whiskey aren’t good either, so STJ Di seals those.

STJ Di sets up the obligatory phoneathon, wherein she admonishes Three One Niner Whiskey to do the right thing.

Today, she threatens unveiling if Three One Niner Whiskey doesn’t do his/her homework.

There follows two decretal pages of recharacterizations and “thou shalt”s, as STJ Di tries to recharacterize, redirect, and reconstruct this stuff into something that looks like it might go in the public file.

Should anyone with the qualifications of STJ Di really be spending her time on grade-school busywork?

What about taxpayers with meritorious claims? What about IRS’ counsel’s time? What about the rights of taxpayers who just want the system to work?

Taishoff says end the redaction distraction. Get it right the first time, blower.

We’re often the recipients of retailers’ offers to “Buy One, Get One Free,” acronymized to “BOGO.” Today Ch J Maurice B (“Mighty Mo”) Foley, zealous guardian of the “small court” purse, grabbing every available George for The Glasshouse Gang, won’t play that game.

Ricardo J. Perez, Donor, and Michelle L. Perez, Donor, Docket No. 20877-19, filed 9/21/20 “…filed a petition seeking to dispute notices of determination regarding the value of gifts for tax year 2012 issued to petitioners … and notices of deficiency for tax year 2014 issued to petitioners…” on the same day. Order., at p. 1.

We all know, as Ch J Mighty Mo man-‘splains to Ricardo and Michelle, and incoming trusty attorney, that each action needs a separate petition. Tax Court again is unlike every other Federal and State court I know of, where one can allege multiple causes of action or bases for relief, either collectively or alternatively.

Here we have a declaratory judgment action regarding gift valuation, and a separate action for redetermination of a SNOD, joined at the cliché.

So what to do?

Sever, of course. Leave the first Docket No. for the declaratory judgment and create a separate Docket No. for the SNOD.

And get another sixty Georges for the second Docket No.

BOGO is No Go for Ch J Mighty Mo.

In my youth, this had to do with tombstones. The custom was to install the tombstone a year after the deceased had been sited in; family and friends would gather, and a sheet would be removed from the tombstone for all to admire. I thought this bizarre at the time, and haven’t attended any in many decades. I don’t even know if this is still done.

But today STJ Diana L (“The Taxpayer’s Friend”) Leyden, having lost patience with a blower who refuses to redact when politely asked, threatens an unveiling of her own.

13420-19W, filed 9/18/20, (hereinafter “Four Twenty”) started anonymously in March, when STJ Di told Four Twenty to redact a few documents, which were replete with personally identifiable information. Also Four Twenty and IRS were to redact and file another eleven (count ’em, eleven) other such documents. STJ Di also gave the parties the usual redaction two-step to follow. And even gave them an extension of time to do so.

Of course Four Twenty did nothing, except file an unredacted motion to toss his own petition. STJ Di orders Four Twenty to redact that, and while he’s about it, to redact further his petition; apparently the original version was imperfectly redacted.

IRS enters the dance, moving to modify STJ Di’s earlier order, because Four Twenty had duck-dived. IRS wants to file twelve (count ’em, twelve) redacted documents.

STJ Di gave Four Twenty an Order to Show Cause why IRS’ redactions shouldn’t go in, at no extra charge.

“… petitioner filed a Response to Order… (response). In his response, petitioner states he has no objection to the submission of the redacted Court Orders attached to respondent’s motion to modify. Petitioner noted an objection to footnote 1 in respondent’s motion to modify as containing ‘other information of petitioner’. Petitioner also noted an objection to footnote 5 of the redacted version of respondent’s motion for summary judgment, attached to respondent’s motion to modify, as containing ‘other information of petitioner’. The Court will take steps to seal these two documents so that this case can proceed on petitioner’s motion to dismiss.” Order, at pp. 2-3.

For those whose eyes have not yet glazed over, STJ Di recounts a phoneathon with IRS and Four Twenty, wherein she told Four Twenty to get that Sharpie in hand, reform and redact.

But STJ Di has finally lost patience with Four Twenty.

“If petitioner fails to comply with this Order, the Court may revisit the question of whether the Court should continue to allow petitioner to proceed anonymously. Whistleblower 12568-16W v. Commissioner, 148 T.C. 103, 107-108 (2017).” Order, at p. 3.

As to 12568-16W, see my blogpost “Now You Don’t See Him, Now You Do,” 3/23/17. As I said back then, if there’s any disincentive to whistleblowing, unveiling is leading.

All of a sudden Ogden is having a German invasion. You may remember Christian Bernd Alber, star of my blogpost “We Don’t Need Lacey,” 1/30/20 BV (Before Virus), and his hotel in Thuringia.

Well, today we have Cindy Damiani, 2020 T. C. Memo. 132, filed 9/17/20, and Felix Ewald Friedel, 2020 T. C. Memo. 131, filed 9/17/20. And they’re both going on about German skullduggery (no US characters or US tax laws), and blowing whistles.

The Ogden Sunseteers, wise to Lacey, send Cindy and Felix to SB/SE classifiers, subject matter experts who sort the wheat from the cliché, and report to the OS. In these cases, since everything was German, they both got tossed by the OS.

Cindy and Felix both have an interesting question. Though both blew the thirty (count ’em, thirty) day deadline to petition the OS toss, Judge Albert G (“Scholar Al”) Lauber gives both Felix and Cindy equitable tolling thereof. See my blogpost “For Whom The Equitable Tolls,” 4/10/20. Maybe since they both filed from Germany, they have got something of a claim for equitable tolling. But as Cindy plays a Michael Corleone gambit on summary J, and the stuff she sent Ogden was junk, IRS wins.

Felix’s case isn’t a lot better. He “…identified six targets, all of whom appear to be German Government officials. He alleged that the targets committed (among other things) fiduciary fraud, breach of trust, bond fraud, identity theft, torture, abuse of power, corruption, and human trafficking. He asserted the targets are ‘criminal Nazi * * * judges / prosecutors’ and alleged that they committed tax fraud by ‘refus[ing] to submit the IRS Forms 1099-OID, f1096 and f1040.’

“Petitioner supplied little information to support his claims. He provided: (1) a memorandum reiterating his allegations, (2) a Form 3949-A, Information Referral, and a Form 14039, Identity Theft Affidavit, and (3) letters that appear to be from a German court and German prosecutor that are written entirely in German. He made no discernible allegations regarding the U.S. tax liability of any person.” Order, at pp. 2-3.

Judge Scholar Al seems to be Tax Court’s latest specialist in Von der Wand blowers.

IRS moves for summary J, surprise, surprise. “Petitioner submitted a one-page response written entirely in German. We ordered him to file a certified English translation of his response. See Administrative Order No. 2020-02 (May 29, 2020) (requiring that all documents must be filed in English or include a certified English translation). He filed a reply stating: ‘[P]lease get an interpreter/translator.’” Order, at pp. 4-5.

This goes over like a lead Zeppelin.

“On the basis of this record, we have no difficulty concluding that the Office did not abuse its discretion in rejecting petitioner’s claims. We will therefore grant summary judgment to respondent.” Order, at p. 10.