Attorney-at-Law

IT’S NOT RIGHT

In Uncategorized on 09/03/2021 at 11:49

Very rarely do I go back to a blogpost to rant about how unfair an opinion was. Rants rarely accomplish much; the target assumes the role of one unjustly attacked, the ranter’s hyperbole undermines credibility; those who listen stop listening fast, as they’ve had enough of such stuff nowadays. And the whole thing sinks into oblivion.

Today I’m going to ignore my own good advice. So, readers, govern yourselves accordingly.

My blogpost “Go Nova,” 8/31/21, got seventeen (count ’em) seventeen views that day, and none thereafter. I’m not complaining about that. Most of my posts concerning small-claimer innocent-spouseries rarely get even that much.

But I went back to edit that blogpost on 9/1/21, because the opinion galled me. At the risk of chewin’ my cabbage twicet, I’ll repost that edit here, with a few extras.

“As best I, a mere old-time, beaten-up, beaten-down, single-shingle dirt lawyer ‘of limited experience and mediocre qualifications’ can discern, Denise blew through $1 million net from the settlement: she owes another $100K credit card debt, $160K to a cousin who lent her money (use of proceeds unknown), $16K to her divorce lawyer, and an undisclosed amount in real estate taxes and home equity line of credit on her MacMansion. Plus put $70K into a business, the fate of which is unknown. This is low income? This is not dissipation of assets? I won’t mention that a high-low settlement agreement got into the record of a trial, to the prejudice of a pro se. It’s been almost five (count ’em, five) years since I said this (and turns out I was right back then): If ever an opinion needed reargument, it’s 2021 T. C. Sum. Op. 31.”

The problem is that Kenneth, the intervenor, was pro se. His argument was probably so poorly articulated that STJ Yuda Guy brushed it off. I’m not faulting STJ Yuda; it probably came out as could’a would’a should’a, not dissipation of assets. Yes, I didn’t see the witnesses or hear the testimony. I know everybody’s testimony looks the same as everybody else’s on paper, but nobody’s testimony looks looks the same as anybody else’s on the stand.

I bet the Villanova Widger School of Law Wildcats must have chewed Kenneth up. There was the prof in charge and two (count ’em, two) students from a highly-selective law school, “hungry as locusts,” as a former US Supreme Court Chief Justice put it. Note I don’t blame either prof or students. They aren’t prosecutors, they’re advocates. Their job is not to make the other side’s case for them, especially when they got the IRS to fold; their job is to win for their client, within the bounds of the law and the ABA Model Rules, and they did.

But what if Kenneth had properly raised dissipation? What if he asked for the credit card statements that supposedly amounted to $100K? What do Denise’s bank statements show? And the $160K she owed to her cousin; don’t interfamily loans and deals get special scrutiny? So where is a copy of the note or other evidence of indebtedness, showing sum certain, dates for payment and maturity, stated rates of interest, events of default, and evidence showing that a commercial or institutional lender would have lent on substantially similar terms? And schedule of payments made thereon, and proofs of each such payment? How much is that real estate tax lien? How old is it, what rate of interest accrues, when does the municipality foreclose? Is this lien not an event of default under the home equity line of credit? And what are the terms of the home equity line of credit, and what drawdowns were taken therefrom, and where did the money go? And what about the business? Is it still operating? Did it ever operate? Was it a sole prop? Were there partners or investors? Let’s see the business’ books, records, tax returns, bank and brokerage statements, and public filings.

Any of my readers, admitted in USTC, would ask these questions, and no doubt a couple others (hi, Judge Holmes) even more pointed that I haven’t thought of. Or gotten the stuff in a Branerton show-and-tell.

Kenneth hadn’t a clue. No reason he should have. But a calendar call commando, or another LITC, would have made a big difference.

This needs reargument; in the interests of justice.

  1. The year at issue is 2014. Both 2013 and 2014 were not filed until December 2017 (coincidentally, the same month husband found out there was another man). The 2013 return showed an overpayment of $9,645, which he tried to apply to 2014. But it was too late for that. The husband, who still works as a tax practitioner and keeps his PTIN current, prepared the returns. The wife doesn’t remember signing. It’s the $9,645 that IRS is now trying to collect.

    The accident happened in September 2014; the settlement was collected in July 2015.

    Turn the clock back to April 2014, before the accident, when the return worth a refund of nearly $10,000 could have been filed. Husband could have prevented the whole mess by doing what he presumably still does for others in his “private practice accounting.” (See LinkedIn, and thanks for allowing extrinsic evidence.)

    Turn the clock back to December 2017, when the husband moved out of the house purchased with the settlement. What did he tell her about the two late-filed returns? That one was a refund and the other had only a $163 balance due because of the overpayment credit?

    The $70,000 “business investment” was made in early 2018, before the bill arrived from IRS. Now the husband says she should have paid the taxes before that. She might have, had she known about them.

    The credit card debt, loans from a cousin, home equity liens, etc. – we don’t know how much of that, if any, accrued after the divorce and after the child-support payments stopped. Nor do we know how much of it came about in the year of pandemic before the April 2021 trial.

    Very few things in life are worth getting upset about, and this is not one of them. A journalist from Philadelphia frequently made that observation, when I worked with him 50 years ago.

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  2. Mr Kamman, you may be right. Or I may be right. But we will never know, as the facts will never be presented and examined as I maintain they should be on a trial. I wonder if IRS chose to fold when they knew that Kenneth had already agreed to pay half the tax and add-ons, even if he won. And I’d be much surprised if IRS’ fold had nothing to do with the outcome. But again, we’ll never know.

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