Attorney-at-Law

DFAS TO THE RESCUE

In Uncategorized on 04/20/2021 at 12:56

In my book Brian Dean Swanson, Docket No. 6837-20, filed 4/20/21, is a dodger. He gave Judge Morrison all the old “wages is not income” and “the Sixteeneth Amendment is unconstitutional” jive, but IRS withdrew the three (count ’em, three) Section 6702 frivolity chops they originally handed Brian Dean.

In return, Judge Morrison gives Brian Dean an off-the-bencher, hitting him for taxes on his wages.

His argument that he got refunds based on his nonreturns (not enough information and no good faith attempt to comply) doesn’t fly either.

But Brian Dean, though now a schoolteacher, is also a veteran.

“He also received $1,667 in wages from the federal government, which was a military bonus for veterans who go into the teaching profession.” Transcript, at p. 4. This he reported in his 1040, as he said they weren’t wages.

Two years later, “(P)etitioner received $32,867 in military pension payments… from the Defense Finance and Accounting Service.” Transcript, at p. 5.

IRS wanted the 10% Section 72(t) whatever-it-is, per Section 4974(c),  but Judge Morrison says “negatory,” and man-‘splains that military pensions aren’t qualified retirement plans.

“Neither party cites authority relating to qualified retirement plans. Based on petitioner’s testimony that he did not participate in a Thrift Savings Plan, his testimony that his pension plan had the characteristics of a standard military pension plan (i.e., fixed nondiscretionary payments based on length of service and rank), and the explanation in Newell v. Commissioner, Tax Court Summary Opinion 2003-1, at page 5, footnote 2, that military pension plans are not section 401(a) trusts, we conclude on a preponderance of evidence that petitioner’s military pension was not a qualified retirement plan. Therefore, petitioner is not subject to the 10% premature-distribution addition to tax.” Transcript, at pp. 11-12.

Judge, I thought Sum. Ops. weren’t precedent and couldn’t be cited.

Howbeit, so Brian Dean owes tax, no Section 6702 frivolity chops, and no Section 72(t) what’s-its. What about Section 6662 accuracy-negligences? Well, as set forth supra, as my high-priced colleagues would say, those chops are only for returns, which wasn’t what Brian Dean filed.

Yes, but how about Section 6673 frivolity chops? Judge Morrison showed Brian Dean the yellow card, and Brian Dean has been here before, frivoling away (see my blogpost “Dealer’s Choice,” 7/29/20).

IRS wanted the full Section 6673 25K monty for Brian Dean, even though he dodges the Section 6662 chops by dint of his own frivolity.

“Although petitioner has continued to advance his frivolous constitutional argument, or some variation of it, even after being warned in our Order denying his motion for summary judgment that a section 6673 penalty could be imposed, he has successfully challenged in this proceeding the imposition of the 10% premature-distribution addition to tax. We decline to impose a section 6673 penalty.” Transcript, at pp. 14-15.

Can’t say IRS counsel covered themselves with glory this time.

 

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