Attorney-at-Law

CROWDED DOCKETS, FRUSTRATED LITIGANTS

In Uncategorized on 05/17/2021 at 17:16

My colleague, Peter Reilly, CPA, has called me a “grumpy old man.” Well, if the cliché fits, I’ll wear it. And to show there’s no hard feeling on my part, I’ll provide lunch next week in his home town.

But if grumpy old man I may be, I’ll share a grump with y’all, my patient readers. Tax Court Judges often lament that wits, wags and wiseacres consume scarce judicial resources, burden IRS’ hard-laboring counsel, teletubbying away, striving from home to prepare and try cases remotely, and delaying the good-faith petitioner who, though maybe mistaken, honestly believes in her or his case. And maybe sometimes is right, and wins.

All this is true. But what price Alero O. Olomajeye, Docket No. 4034-19, filed 5/17/21? Alero isn’t an explicit defier or protester; no all-zeros return or Hendricksonian blather. Alero twice refuses to stip per Rule 91, so got defaulted. She moves to vacate the default, but never comes up with either argument or proof that the SNOD she got was wrong.

“Since the filing of the petition on February 25, 2019, Ms. Olomajeye has offered no evidence nor legal argument that credibly challenges respondent’s determinations. The petition argues that ‘there is applicable tax law’ and ‘other equitable reasons’ rendering the deficiency determination erroneous, however, Ms. Olomajeye never identifies the relevant tax law or equitable reasons in question.” Order, at p. 2.

“At other points in the course of this litigation, Ms. Olomajeye declined opportunities to present specific legal arguments or allege facts demonstrating respondent’s deficiency determination erroneous. Ms. Olomajeye submitted no pretrial memoranda nor exhibits for trial on the occasions such material was called for. Relatedly, on the two occasions Ms. Olomajeye’s case was called from the calendar, she did not proceed to try her case.” Order, at p. 3. I’ll pardon Judge Courtney D (“CD”) Jones the neologism “relatedly.”

Alero got a notice from Collections that tax had not been assessed, so claim she owes none. Wrong. “When a taxpayer files a petition in this Court, the IRS may not assess nor collect the deficiency at issue until after the decision of the Court becomes final. See sec. 6213(a). Thus, any deficiency amount would not yet appear assessed and due on Ms. Olomajeye’s account at this time, nor at the time of the referred to notice.” Order, at p. 4.

Alero claims she hadn’t time to get information about the early drawdown of her IRA. Except she had two years.

“Lastly, the Court indeed prohibited Ms. Olomajeye’s husband, Rick Johnson (Mr. Johnson), from advocating on Ms. Olomajeye’s behalf. Notwithstanding the executed power of attorney, Mr. Johnson is not admitted to practice before the Court pursuant to Rule 200. A power of attorney alone does not permit Mr. Johnson to represent Ms. Olomajeye in this Court. Even assuming arguendo that it does, we note that the executed power of attorney submitted to the Court does not appear to confer Mr. Johnson any authority over Ms. Olomajeye’s taxes.” Order, at p. 7. Alero didn’t initial the form POA at the “taxes” bloc, leading me to surmise that the POA is a State-specific form and not Form 2848.

So after two (count ’em, two) years of this, Judge CD Jones finds for IRS.

Before you ask “Where were the LITCs and the calendar call commandos?” I’ll let Judge CD Jones tell you, in a footnote.

“…the Court has encouraged Ms. Olomajeye to secure counsel at various points in this case. On two occasions in 2019 and once in 2020, the Court forwarded Ms. Olomajeye notices containing the contact information for low-income taxpayer clinics within the Legal Aid Society of Greater Cincinnati and the Center for Great Neighborhoods. At calendar call on March 29, 2021, Ms. Olomajeye was also advised of the availability of a volunteer attorney, and the Court arranged for her to meet with one such volunteer in a virtual breakout room. See Transcript of Proceedings on Mar. 29, 2021, 3:20-5:21 (index #32). While she was able to speak with a volunteer attorney, none were available to represent her at trial given the eleventh-hour nature of her request. Nonetheless, Ms. Olomajeye had ample time and opportunity to secure legal representation since filing her petition more than two years ago. Her failure to do so cannot be used as a backdoor to continuance.” Order, at p. 5, footnote 7.

And I haven’t chronicled here more than half of Alero’s maneuvering.

Judge, I most respectfully submit that in my opinion Alero is playing. While this petition is pending, IRS can’t collect. And Alero has stopped a shaved inch short of delay of the game. So without any available sanction, what is to prevent similar gaming?

I feel the judicial pain here. “Our well-publicized case load is attributable in part to taxpayers who fail to judiciously prosecute their cases. Preparing a case for trial also consumes this Court’s limited resources. Repetitive delays by a single taxpayer also hinders other taxpayers from having their cases timely adjudicated.” Order, at p. 4, footnote 5.

So just maybe possibly there might be a couple Section 6673 chops pour encourager les autres?

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