Attorney-at-Law

SURGE UPDATE

In Uncategorized on 08/30/2021 at 15:51

No, I haven’t taken up weather reporting, however compelling the news from NOLA. This is the latest on the surge of petitions to US Tax Court. As at 3:07 p.m., EDT, the latest docket number I can find is 20706-21S, filed 6/9/21, or about one week shy of three (count ’em, three) months ago. Might it not be an exaggeration to state that the stack of unprocessed petitions, when added to those already logged in, will far exceed the expected 24K + anticipated in my blogpost “Premature,” 7/23/21?

Might it not be reckless speculation to suggest the number of petitions filed might approach, if not exceed, 35,000 total for calendar 2021?

In the midst of which deluge, we have today Austin Leroy Bayne, Docket No. 2680-20S, filed 8/30/21*. Austin Leroy petitioned last year, and then did nothing, at least so far as Judge Gale is able to discern from the record.

IRS moves to toss Austin Leroy for want of prosecution. Judge Gale fires the following salvo.

“Petitioner’s failure to appear for trial and failure to comply with the terms of the Standing Pretrial Order requiring adequate pretrial preparation have prejudiced respondent by causing him to expend resources that could have been expended elsewhere. Moreover, petitioner’s failure to appear for trial and failure to comply with the Standing Pretrial Order have hindered the Court’s management of its docket. None of petitioner’s failures are excused. We have balanced petitioner’s interest in being heard, which has been diminished by his failure to meaningfully participate in these proceedings, against the Court’s responsibility to manage its docket, and we have concluded that dismissal is warranted.” Order, at p. 4. (Copious citation of precedent omitted.)

OK, great. Austin Leroy is out, even if it took Judge Gale four pages to get there, leaving only twenty-some thousand petitions to go.

Not quite. As the midnight telehucksters say “But wait! There’s more!”

IRS wants chops and add-ons, with BoP and BProd at no extra charge.

“Respondent has not attempted to meet his burden of production with respect to the additions to tax determined in the notice of deficiency. He instead argues that he has no burden of production as to the additions to tax because the Petition fails to put them at issue. We disagree. As we have previously explained, ‘[a]ll claims in a petition should be broadly construed so as to do substantial justice, and a petition filed by a pro se litigant should be liberally construed. The assignments of error in the Petition, which petitioner filed pro se, include the statement, ‘I don’t think it’s fair to wait 5 years then slap someone with all these charges and penal[]ties.’ That statement, construed liberally, is sufficient to put respondent on notice that petitioner disagrees with respondent’s determination that he is liable for ‘charges and penalties’, i.e., additions to tax, for the year at issue. We accordingly must determine whether respondent has satisfied his burden of production with respect to each of the additions to tax determined in the notice of deficiency.” Order, at pp. 9-10. (Citations omitted).

Judge Gale gives a great review of all thereof. IRS gets late-filing, but not late payment (Austin Leroy had enough uncontested withholding credits on his late-filed 1040A to satisfy, and IRS produced no SFR to say otherwise). And IRS has no return to show what Austin Leroy’s previous year’s tax was, so no ES-nonfiling add-on.

Austin Leroy sure got his day in court, even if he wasn’t there. All thirteen pages’ worth.

*Austin Leroy Bayne 2680-20S 8 30 21

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