Attorney-at-Law

DON’T OVERTRY YOUR CASE

In Uncategorized on 02/16/2021 at 15:45

This was an admonition I received in my early days. And it’s still true. One doesn’t want to alienate the trier of fact (be it bench trial or jury trial) by wasting their time or insulting their intelligence. Still, has to protect one’s record, especially when confronting such as Don Kramer, 2021 T. C. Memo. 16, filed 2/16/21. Though Don defaulted no fewer than three (count ’em, three) times, he’s clearly an inventive type.

So Judge Gale burns through 31 (count ’em, 31) pages of electrons, to establish and confirm each and every element of the whopping deficiencies, additions, and chops IRS has bestowed on Don.

It’s thoroughly fact-bound, so I’ll skip retelling. The only practice point I found is the breadth of pleading accorded Don and any pro se petitioner.

The issue is two items of unreported income, State tax refunds and pension and annuity payments. IRS has to show the usual minimal connection between such items and the taxpayer, and neither the deemed Rule 91 stips nor Don’s other defaults does that.

Judge Gale: “Respondent contends that these two income adjustments (which appear in the notice of deficiency on line ‘e’ of section 7, titled ‘Adjustments to income’, in Forms 5278, Statement – Income Tax Changes) are not in dispute because the petition…did not properly assign error to them. It is true that, despite assigning error to other adjustments…by identifying specific lettered items listed in section 7 of the Forms 5278, the petition did not specifically assign error to the line 7(e) adjustments. But the petition nevertheless alleged that respondent’s written explanations with respect to ‘Taxable Refunds of State and Local Income Taxes’ and ‘Pensions and Annuities’ were ‘baseless and arbitrary’. Those written explanations (which appear in the notice of deficiency in Form 886-A, Explanation of Items) list the specific amounts of the relevant income adjustments. Under these circumstances, we conclude that the petition adequately assigned error to both adjustments.” 2021 T. C. Memo. 16, at p. 12, footnote 9 (Citation omitted).

Turns out that returns for other years showed income from such sources, so Don is roped in anyway.

Pro ses get indulgence, where we lawyers would be told to amend to be more definite and certain, and likely also get rapped on the knuckles for conclusory pleading, if all we said was “baseless and arbitrary.”

 

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