Attorney-at-Law

TIMEO DANAOS

In Uncategorized on 01/12/2021 at 17:08

This Latin tag from the Greek original is surely well-known to Judge Patrick J. (“Scholar Pat”) Urda. It may even be well-known to the trusty attorneys for Michael J. Boettcher and Katherine H. Boettcher, 2021 T. C. Memo. 4, filed 1/12/21. Can’t link to the text; DAWSON doesn’t allow it. Get with it, Genius Baristas.

The Boettchers had their IA bounced, and the bounce affirmed by Appeals, but the SO on the case was less than punctilious with the paperwork.

“Multiple unanswered questions cast doubt on the settlement officer’s analysis, however. First, we note that in calculating the Boettchers’ income and expenses, the settlement officer rejected the Form 433-A out of hand because of perceived omissions with respect to “bank info and investments” on the second page and business income and distributions on the fourth page. But the Form 433-A in the record before us plainly contains bank and investment information. The settlement officer herself noted that the Boettchers had no income besides wages in [year at issue], suggesting that there would be no business income or distributions to be reported. We are left perplexed as to the reasons for rejecting the Form 433-A.

“The settlement officer’s analysis of the Boettchers’ income likewise raises questions.” 2021 T. C. Memo. 4, at p. 12. And Judge Scholar Pat has more to say about that than I have space for.

Judge Scholar Pat weighs heavily against the SO for not asking the Boettchers for more information to clarify, although we’ve seen cases where SOs get a bye. Maybe here it’s quantity; too many unanswered questions, plus the usual nod to Chenery.

“In his briefs respondent defends the rejection of the installment agreement on the ground that the Boettchers failed to supply the financial information requested by the settlement officer in her scheduling letter. This purported failure, however, was not cited in the notice of determination as a reason for rejection. To the contrary, the notice suggests that the Boettchers’ financial information sufficed, stating that ‘[w]e asked you to provide the requested information to us …. We received your correspondence’ and later, ‘we considered your financial information, unfortunately, we were unable to accept your proposal based on our review of your income and expenses you have the ability to make larger monthly payments.’ We cannot uphold a notice of determination on grounds other than those actually relied upon by the settlement officer.” 2021 T. C. Memo. 4, at p. 15. (Citations omitted, but Chenery leads the peloton).

Now the case comes up on a Rule 121 agreed statement. But Judge Scholar Pat, apparently deciding sua sponte that the record is so flawed he can’t decide for IRS or for the Boettchers, remands the case back to Appeals.

I’ve said before that, if offered a remand, or perhaps seeking remand, the practitioner should think twice. See my blogpost “Take the Hint,” 11/25/15. Remand may be a goal-line save for IRS, who can rehabilitate a dicey record the better wherewith to scuttle your client, especially if the Judge gives them a blueprint for the rehab.

But when the Judge decides to do it, unsought by the parties, practitioner beware. See my headline hereinabove set forth at the head hereof (as my already-on-their-second-18-year-old-Macallan colleagues would say).

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