In Uncategorized on 07/08/2021 at 14:32

His elaborately-nuanced prose delighted me as a young aspirant on The Hill Far Above. I remember putting on those judicial robes when I sat on the Moot Court Board too many years ago, wishing I could be the real thing, and write like that, someday.

Ah, our youthful follies and dreams. But Big Ben Cardozo (that’s Benjamin Nathan Cardozo, first on Our Fair State’s highest court, and later a luminary amongst the Supremes) is still my hero, as today I recall his famous remark in People v. Defore, 242 N. Y. 13, at p. 21 (1926). “There has been no blinking the consequences. The criminal is to go free because the constable has blundered.”

This is what Judge Holmes pointed out when Tax Court engraved Graev on every man-made chop, wheresoever situated. See my blogpost “Stir, Baby, Stir – That Silt,” 12/20/17.

Judge Gale is in line with the well-settled (I had almost said well-silted) precedent in Dustin S. Whitfield, Docket No. 6546-19S, filed 7/8/21. IRS moved to toss Dustin back in March for non-prosecution, after the Standing Pretrial Order has issued last November, and Dustin did nothing.

Judge Gale takes up the story.

“During the period after this case was set for trial, respondent’s counsel made multiple attempts to contact petitioner by letter and by telephone in order to attempt to resolve this case or prepare it for trial. However, petitioner has not responded to respondent’s counsel’s repeated attempts at communication. Consequently, the parties have not filed a status report or a stipulation of facts. Nor has petitioner filed a pretrial memorandum or motion to dismiss, or any proposed trial exhibits.” Order, at p. 2. (Footnote omitted, but it says IRS tried letters and phonecalls, and got nothing).

And Judge Gale gives us the usual “somber reasoning and copious citation of precedent” about “clear record of delay” and “contumacious conduct.” Order, at p. 3. With waste of IRS resources thrown in.

I note Dustin failed to report $172 of income, and that’s enough to sustain the presumption of correctness for the whole $7444 deficiency. Dustin disputed other parts of the deficiency in his petition, but not the $172.

“Moreover, a notice of deficiency alone may satisfy the Commissioner’s evidentiary burden if it indicates that a third party has paid the taxpayer the amount in question and reported the payment to the Commissioner. The notice of deficiency in this case identifies the name of a third-party payor that evidently reported the payment to the Commissioner. The Commissioner’s burden of production with respect to the $172 payment therefore would be satisfied even if the Petition could be construed to dispute the unreported income determination. The presumption of correctness thus attaches to the notice of deficiency.” Order, at p. 5.

But Dustin dodges the Section 6662(a) chop, even though he never challenged it in his petition.

“While the petition in this case does not explicitly assign error to respondent’s penalty determination, it does assign error to other adjustments in the notice of deficiency (including respondent’s disallowance of relatively large refundable credits), and it further alleges that petitioner should have no tax liability for the year at issue. A petition prepared without the assistance of counsel, as in this case, should be liberally construed. As noted above, section 6662(a) imposes a penalty only in cases involving an underpayment of tax. Petitioner thus could not be liable for such a penalty if he were to prevail on his claim that, after correction of the disputed adjustments in the notice of deficiency, he would have no tax liability for the year at issue. Accordingly, in view of petitioner’s pro se status, we conclude that the Petition adequately assigns error to the penalty determination. We therefore must determine whether respondent has satisfied his burden of production with respect thereto.” Order, at p. 6 (Citation omitted, but see my blogpost “Too Late But Still Timely,” 3/28/12, for the indulgence to pro se pleadings).

IRS has only the Michael Corleone gambit, so Dustin walks on the chop.

No blinking the consequences.


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