In Uncategorized on 02/25/2021 at 16:28

All y’all will of course remember that the celebrated Taxpayer First Act of 2019 engrafted subsection (e)(7) onto Section 6015 innocent spousery. That legislative gift kept on giving to the tune of five (count ’em, five) blogposts.

And now Judge Mark V. Holmes gives me another on an opinionless afternoon, so you won’t get another rant from me about DAWSON. But watch this space: I’m working on one.

Instead, here’s Jodell Sample, Docket No. 4394-20, filed 2/25/21. Jodell opposes IRS wild-carding into evidence some post-NOD stuff. But Jodell and IRS do agree that Section 6015(e)(7) is the standard and scope of review under the new régime.

“They agreed that the new provisions of § 6015(e)(7), in which Congress explicitly provided a standard and scope of review in these cases, applied. They explained that they had nearly agreed on what the contents of ‘the administrative record established at the time of the determination’ were, but that respondent also wanted to introduce documents that the IRS created after it issued that determination. Petitioner objects because those documents are not part of the administrative record. It may also be the case that those documents, if they concern the IRS’s procedure in formulating its determination, would be immaterial to the Court under a de novo standard of review.” Order, at p. 1.

I don’t see why much was made about the applicability of the Taxpayer First Act’s rewrite of the Section 6015(e) standard of review.  A quick docket research shows Jodell petitioned 3/4/20, the Congressional Research Service website shows Taxpayer First became effective 7/1/19, and section 1203 of the Act applies to any proceeding filed thereafter. So why do you need to agree that the law is the law?

But more to the point is IRS’ wild-card.

Under the Taxpayer First Act, innocent spouse review de novo is limited to administrative record and newly-discovered evidence; so no new trial with witnesses, unless they’re the newly-discovered or previously-unavailable evidence.

“Petitioner helpfully pointed out that these may turn out to be questions of first impression. Respondent reasonably wants to seek the views of the National Office. All agreed that these questions could be set up in a motion in limine. Once we decide that motion, they would likely be able to agree on a stipulation to submit the case for decision on the merits under Rule 122 or on crossmotions for summary judgment on the basis of a stipulated record. Given the possible importance of this motion to this corner of tax law, the Court will be generous in its briefing schedule.” Order, at p. 1.

Leaving aside the quibble that there are no “crossmotions” in Tax Court (see Rule 54(b); you can’t respond to a motion and move for your own in the same filing), Judge Holmes gives the parties three months to move, respond and reply. And the parties can stip between themselves for more time.

We’re not told what this “additional newly discovered or previously unavailable evidence” might be, or why IRS didn’t have it before now. I wonder why IRS didn’t move to remand back to Appeals, so as to patch up the administrative record. And I wonder why petitioner didn’t move in limine off the bat to toss this stuff, rather than being “helpful.” Giving the IRS an easy escape-hatch?

Plenty of good blogfodder from Taxpayer First.

Edited to add, 4/1/21: Looks like Jodell and IRS agreed to go with a Rule 122 stiped facts. Maybe so IRS folded the wild cards.


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