Attorney-at-Law

CHE SE FIRMA È PERDUTO – PART DEUX

In Uncategorized on 07/20/2021 at 18:48

As I said back in 2017, “No, I’m not showing off my Italian; I know very little. But the title of this blogpost is a pun. The old saying ‘Chi si ferma è perduto’ (he who hesitates is lost) mutated to ‘Chi se firma è perduto’ (he who signs his name is lost) in the upheavals between 1943 and 1945, when Italy was divided by war, and signing one’s name to anything might not end well for the signer.” See my blogpost thus entitled.

Today Indu Rawat, Docket No. 15340-16, filed 7/20/21, is caught in the same thicket. Indu is a Canadian NRA (no, not a gunslinger, Non Resident Alien) who sold her US partnership interest. IRS wants her to pick up a $6 million share of gain on inventory sold after she left. Section 752 then mandated same, but Indu wants to play like Aristophanes’ hero in his 424 B. C. smash hit The Knights, and traffic in mines (see my blogpost “It’s Not FIRPTA,” 7/13/17).

So Indu wants summary J.

But Indu, and her “representative under a Form 2848, Power of Attorney and Declaration of Representative,” (Order, at p. 2, and thanks, Judge Gustafson, for the right terminology) got a Form 5701 Notice of Proposed Adjustment, and Indu later signed off on Form 870-LT, agreeing to the changes to partnership items, add-ons and chops, and affected items (that’s TEFRA for “individual partner stuff”). Attached was Form 886-A, the man-‘splainer.

IRS can’t produce the signed original, but IRS claims they’re looking, and both Indu and her rep signed it. In summary J, nonmovant gets every favorable inference. Indu claims the Form 886-A doesn’t take care of her individual (affected) items. IRS says it does. Therefore, there must be a trial.

Indu claims Grecian Magnesite (see my blogpost “It’s Not FIRPTA,” above-cited) puts paid to any question of any gain other than sale of the interest itself; partnership assets don’t count. Yes, the statute was amended, but Indu is pre-amendment. And Indu ignores the binding effect of Form 870-LT.

Sorry, Indu. You settled. The law changed later, but Section 7122 governs. You settle, and absent fraud, malfeasance, or misrepresentation of material fact, you’re stuck.

I’d like to quote language from the order, but this is another of the uncopyable PDF documents that occasionally shows up both before and after DAWSON. Read Judge Gustafson’s order before you sign a Form 870-LT.

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