Attorney-at-Law

OCTAVIA RULES – IT’S TIME

In Uncategorized on 08/09/2021 at 16:08

Back in May a year ago I cautioned that COVID-19 “is there for the long haul.” At the time, I noted that applications to take the examination for admission to Tax Court, formerly mandated to be paper, could be e-filed by special dispensation. See my blogpost “The Octavia Rules -Part Deux,” 5/12/20. So why not petitions from SNODs and NODs?

I was ignored, as usual.

Now the clichés have come home to roost. And Judge Albert G (“Scholar Al”) Lauber and his colleagues must deal with their droppings.

Adolfo Sandor Montero, Docket No. 7607-20, filed 8/9/21, is a techie and a top-class frivolite. He’s petitioning a SNOD, but his envelope has no legible postmark. IRS wants to toss Adolfo for lateness, but Adolfo isn’t alone, and for once he may have a valid issue.

Adolfo’s petition was filed 7/10/21. At least, that’s the date the flailing datestampers at The Glasshouse on Second Street impressed on Adolfo’s latest. Note that date.

“…respondent filed a Motion to Dismiss for Lack of Jurisdiction. Petitioner objected to that Motion, contending that his petition was timely under I.R.C. sec. 7508A(d). It provides taxpayers who are affected by a Federally declared disaster with a 60-day extension to comply with certain time-sensitive acts under the Code. Petitioner urges that this provision was triggered by Federal emergency declarations related to the COVID-19 pandemic; respondent disputes that proposition.”  Order, at pp. 1-2.

Y’all will recall the famous lockdown Press Release dated 3/18/20, wherein was revealed the COVID-19-precipitated doorslamming. And all y’all will surely remember Steve Mnuchin and the Treasury Munchkins holding a bunch time-sensitive filings in abeyance (hi, Judge Holmes). If not, see my blogpost “Le Quinzième Juillet,” 4/10/20, and the Grand Opening Press Release of 6/19/20.

Judge Scholar Al punts, and well he should.

“We will take respondent’s Motion to Dismiss under advisement. The proper application of section 7508A(d) in the context of the pandemic has been raised by several taxpayers. The Court will coordinate its disposition of motions implicating this issue in order to ensure consistent treatment.” Order, at p. 2.

We’ve got the statutory time limits on filing petitions from SNODs and NODs, because, as I have pointed out a number of times, filing a petition gives petitioner a TRO against collection. It’s like the Bankruptcy automatic stay. So IRS needs to know when they can go ahead and lien or grab. OTOH, the COVID-19 lockdown was imposed by the gov’t, and frustrated petitioners’ strict performance in time.

And the mail-and-remail tack taken by an announcement on the (now-obliterated, pre-DAWSON) Tax Court website (see my blogpost “Why?” 5/4/20) has no basis in statute, Rule, or anything else.

I never want to get political, but if certain legally-permissible acts can be stayed by a COVID-19 induced moratorium….

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