Attorney-at-Law

MISFIRE

In Uncategorized on 02/24/2021 at 15:09

We all know well that the administrative record is the darling of all discretionary drill-downs in Tax Court. Notwithstanding, today Judge Patrick J. (“Scholar Pat”) Urda deals with Robinette v. Commissioner, 123 T.C. 85, 95 (2004), rev’d, 439 F.3d 455 (8th Cir.2006), which permits expansion of the administrative record in reviewing a Section 6330(d) levy CDP.

I’m skipping the stereotypical fight over a couple OICs (hi, Judge Holmes) in Craig L. Galloway, 2021 T. C. Memo. 24, filed 2/24/21. It’s the usual determination-sustentation where the petitioner participated previously before Appeals, lost, and “never breathed a word about his loss,” as a much finer writer than I put it. And the beancount over disposable income to satisfy the liability.

IRS is trying to get rid of Robinette, and go back to administrative record rules the universe.

Judge Scholar Pat isn’t buying, especially as nobody’s fighting about the evidence aliunde.

And this is a summary J cross-motion; not the sort of case where long-standing precedent should be casually tossed.

“Mr. Galloway seeks to rely upon three documents that are not part of the administrative record. Respondent objects, urging us to overrule our decision in Robinette v. Commissioner, 123 T.C. 85, 95 (2004), rev’d, 439 F.3d 455 (8th Cir.2006), in which we held that, ‘when reviewing for abuse of discretion undersection 6330(d), * * * our review is not limited to the administrative record.’ The documents relate to dispositive undisputed facts. We decline to reconsider our precedent in a case where it would have no practical effect, and thus permit Mr. Galloway and respondent to refer to the exhibits as they see fit.” 2021 T. C. Memo. 24, at p. 3, footnote 3.

I understand trying any move that isn’t downright frivolous (as the hockey players say, shoot the puck, it might go in). But here IRS’ counsel is going it a wee bit strong.

 

 

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