Attorney-at-Law

Archive for October, 2021|Monthly archive page

26822-21

In Uncategorized on 10/15/2021 at 12:30

As at 12:09 p.m., EDT, the highest docket number assigned to Tax Court petitions filed in calendar 2021 has reached the above-stated number. Y’all will recall that, back on 8/16/21, Tax Court announced that it had reached out to selected stakeholders to seek ways and means to prevent assessment and collection actions where petitions had been filed but not been served on IRS. If you don’t, see my blogposts “Premature,” 7/23/21, and “Draining the Swamp,” 8/17/21.

Of course, the hardlaboring intake clerks and flailing datestampers have only gotten to the end of July.

I expect to see  at least 32,000 petitions by year’s end. The tsunami continues, the swamp overflows, and I await the report of the selected stakeholders as to their recommended remedies.

POWER OFF

In Uncategorized on 10/15/2021 at 08:59

The Plot Thickens

Back in August, 2019, Ch J Maurice B (“Mighty Mo”) Foley didn’t designate his order in Michael D. Tringali & Kathleen L. Tringali, Docket No.15592-17, filed 8/29/19*, so I never blogged it. But that order revealed whose Dad filed the allegedly bogus petition.

M & K claimed “… that this case was initiated without their knowledge and that petitioner Michael D. Tringali’s father has established a post office box to receive and intercept mail related to this case.” Order, at p. 1.

OK, so if there had been an order directing M & K to ratify the petition, they never would have seen it. Except a docket search reveals no such order. Most unusual, unless Mike’s Dad is a USTCP or admitted attorney. In that case, he had better look up ABA Model Rule 8.4(c), which Rule 201(a) makes applicable to non-attorney practitioners as well as the rest of us. And CSTJ Lewis (“What A Name!”) Carluzzo might well ask Dad for a Rule 201(b) statement.

Well, unless there is a Rule 161 recon or Rule 162 vacation, or even less likely a disciplinary order, we will never know why no order directing ratification was sent to M & K, even if Dad could have intercepted it.

But I’m prepared to make a modest wager that Dad is a FL attorney.

*M & K Tringali 15592-17 8 29 19

POWER ON, POWER OFF

In Uncategorized on 10/14/2021 at 16:36

The power to act for another in his/her/its/their place and stead is the top of a slippery slope, and the agreement of the other is even slipprier. Who better to toggle the switch to turn the power on or off than CSTJ Lewis (“The Right Spelling”) Carluzzo, as he does so today in Wendy Reiners & Kendall C. Hochman, Docket No. 4809-19L, filed 10/14/21*, and in Michael D. Tringali & Kathleen L. Tringali, Docket No. 15592-17**, of even date therewith (as my expensive colleagues would say).

Power on, to start. Ken H signed a document called a Durable Power of Attorney for Finances (POA).  By this document, Ken H appointed Wendy as “… his agent with authority ‘to prepare, sign, and file separate or joint income, and other tax returns and other governmental reports and documents; to file any claim for tax refund; and to represent * * * [him] in all matters before the Internal Revenue Service.'” Order, at p. 2. Wendy signed the Form 4549 for two of the years at issue on Ken H’s behalf, agreeing not to contest, waiving assessment, and telling IRS to go lien and grab. The third year at issue was self-reporteds.

Case comes up off a CDP, with Ken H’s rep claiming Wendy had no authority to bind Ken H.

“The POA is governed and construed in accordance with the laws of Connecticut, which support Mrs. Reiners’ authority as an agent of Mr. Hochman to sign the Form 4549 on his behalf. See Conn. Gen. Stat. Ann. sec. 1-351o (West 2016). It is clear that the POA granted Mrs. Reiners the authority to act as Mr. Hochman’s agent with respect to Federal tax matters, which she did by signing the Form 4549. One consequence of the valid Form 4549 is that petitioners cannot in this proceeding now challenge the tax liabilities… to which they have consented.” Order, at pp. 3-4. (Citations omitted).

So even a non-Form 2848 POA can bind the principal as to the IRS if properly prepared and executed in accordance with State law.

But now, power off, as CSTJ Lew shuts down the Tringalis. Here it’s a question of authority as to Tax Court. There was a SNOD sent to last-known-address.

“A petition captioned ‘Michael D. Tringali and Kathleen L. Tringali’ signed by the father of one of the petitioners was received by the Court and filed within that 90-day period. Neither petitioner signed the document treated as a petition.” Order, at p. 1.

Now there is any number of cases where an unadmitted person sends in a petition on behalf, and in the name(s), of taxpayers. The Ch J orders the named petitioners to ratify, and has the Clerk send out a ratification form. For whatever reason (or lack thereof), nobody checked to see if Dad was a USTCP or admitted attorney. As Dad’s name is not given, I cannot tell. Howbeit, M & K were surprised. Note the dates.

” In a motion for continuance, filed October 26, 2018, among other things, petitioners explain that the individual who signed the petition, even though a relative of one of them, did so without their knowledge or consent. According to that motion, petitioners further state that they first learned of this case on October 22, 2018, more than a year after the petition was filed. Their later attempt to ratify the filing of the petition is of no consequence as it is clear that an unauthorized act cannot be ratified.” Order, at pp. 1-2. (Citation omitted, but it’s Alfred J. Martin, 2000 T. C. Memo. 187, filed 6/27/00***).

Judge, that’s a little too simple. The whole purpose of the legal concept of ratification is to permit a person to adopt after the fact an act that they did not do (and maybe didn’t even know was done) as their own. But it has to be an act, not a nullity.

Martin never ratified the petition in his case (which was filed by an admitted attorney, btw, so it was facially a petition) and never tried to ratify it. Martin argued that he wanted to settle the case and sent the attorney a check for $50K, which was paid to the IRS.

By contrast, in Tringalis’ case, if Dad wasn’t a USTCP or an admitted attorney, the “petition” was a nullity from the getgo, even if M & K “ratified” it seven times over. But the issue isn’t authorized or unauthorized; the issue is “was it even a petition”?

If it was, M & K could ratify it if they acted diligently. If it wasn’t, there’s nothing to ratify. Power off.

*Wendy Reiners & K C Hochman 4809-19L 10 14 21

**M D Tringali & K L Tringali 15592-17 10 14 21

***Alfred J Martin 2000 T C Memo 187 6 27 00

THE FIGHTING LAWYER – PART DEUX

In Uncategorized on 10/13/2021 at 16:31

Alice L. McGahuey, Deceased, Docket No. 13278-19, filed 10/13/21*, may have gone to her eternal reward, and her “only ascertainable heir at law,” son Bill, may have said OK when IRS moved to toss the late Alice’s petition for want of prosecution, but that doesn’t stop the late Alice’s trusty attorney, whom I’ll call Danny H, from putting his oar in.

IRS moved to toss, representing that son Bill hadn’t any objection. But Danny H did.

So Ex-Ch J L Paige (“Iron Fist”) Marvel “… directed petitioner’s counsel to file a response to respondent’s motion to dismiss, and… counsel for petitioner did so. In the response, petitioner’s counsel states, among other things, that he had no prior knowledge of [Bill]’s position with respect to the motion to dismiss, and suggests that [Bill] may take steps to secure a representative for petitioner’s estate before the trial date.” Order, at p. 1.

Now ex-Ch J Iron Fist, doubtless noting that it took three (count ’em, three) continuances (that’s adjournments, for us State courtiers) to get IRS to move to toss, tells Danny H and Bill to throw the football or eat the football.

So Danny H (and Bill) “… on or before November 5, 2021… must file a report stating (1) the names, mailing addresses, and telephone numbers of petitioner’s heirs at law, (2) whether administration of an estate has been opened for petitioner, (3) whether any person has been appointed as the executor, personal representative, or fiduciary for such estate, and (4) whether one or more of the heirs at law intend to continue this litigation on behalf of petitioner’s estate. If the report is not filed by the deadline, the Court will grant respondent’s motion to dismiss and dismiss this case.” Order, at p. 2 (Emphasis by the court).

Ex-Ch J Iron Fist is a stickler for correct phraseology: an estate is administered, whether by ex’r or adm’r or persrep; only a will is probated. And dilatory tactics get short shrift.

Of course, even in non-pandemic times, I doubt if anyone gets even preliminary or limited letters in three weeks’ time from a standing start out of any probate court. But the Fighting Lawyer can at least rev up the engine, if he can’t put the pedal to the metal.

*Alice McGahuey 13278-19 10 13 21

 

WHY HE CANCELED TUESDAY

In Uncategorized on 10/12/2021 at 16:09

I was eagerly awaiting the six o’clock hour, not for the Gibson but for The Great Chieftain of The Jersey Boys’ Zoomielecture on Tax Court Law and Practice, scheduled for this evening. But an early e-mail told me the lecture was postponed a week hence. No explanation. I tried to re-register, in case that was needed, but the website told me I was already signed up.

Frantic Frank’s lectures are not to be missed if you are lining up for the Slaughter of the Innocents, a/k/a the United States Tax Court admissions examination. It is a brutal ordeal, with a minuscule passing rate. Frank Agostino, Esq., is well worth your attention, however long you’ve been practicing, or for whatever examination confronts you.

Howbeit, I may have found an answer, led there by Judge Albert G (“Scholar Al”) Lauber, who, I’ll wager, could give a lecture at least equally good. It would be great to have them both on a CLE panel.

Down to business.

IRS wants to depose a couple non-party witnesses (hi, Judge Holmes) in Oconee Landing Property, LLC, Oconee Landing Investors, LLC, Tax Matters Partner, Docket No. 11814-19, filed 10/12/21*, to which the Oconees and the non-parties object, so IRS moves to compel.

Since there’s a $20 million deduction on the table (see my blogpost “Preserving the Preservation Easement,” 8/18/20), I cannot suppose the non-parties have no relationship with the appraisal at issue here. Looks like IRS has dropped the “improvements out” gambit.

So the non-parties lawyer up. And look who’s representing them!  No wonder he’s busy tonight.

*Oconee Landing 11814-19 10 12 21

DON’T MESS WITH TEX

In Uncategorized on 10/12/2021 at 13:02

When visiting my nearest and dearest in The Lone Star State, I often saw the bumper sticker “Don’t Mess With Texas,” an adjuration to refrain from littering. Today, Judge Elizabeth A. (“Tex”) Copeland has a like admonition to Christian S. Silver, Docket No. 8805-18, filed 10/12/21* (a special day in our family on other grounds).

Chris is a protester. He featured in 2021 T. C. Memo. 98, filed 8/9/21**, which I didn’t bother to blog. I had Adams Challenger UK that day (see my blogpost “Always The Numbers,” 8/9/21), as well as A. S. Montero, “a top-class frivolite.” See my blogpost “The Octavia Rules – It’s Time,” 8/9/21, a much more interesting fact pattern.

Chris is back with Judge Tex Copeland, seeking a Rule 162 vacation. He hasn’t anything new, just the same-old, same-old stuff he lost back in August. Back then, Judge Tex Copeland showed Chris the Section 6673 yellow card.

“At trial the Commissioner made an oral motion for a section 6673 penalty to be applied here. Section 6673(a)(1) allows the Court to impose a penalty not to exceed $25,000 when it appears that a taxpayer’s position is frivolous or groundless. Whether to impose a section 6673 penalty is entirely within our discretion. See sec. 6673(a). Aside from this case, Mr. Silver has filed two other petitions with this Court. In neither case was he warned that a penalty under section 6673 might be imposed on him; further, the penalty request here was not advanced until the time of trial. Thus, we decline to impose a section 6673 penalty upon Mr. Silver at this time, but we warn him that if he continues to advance the same positions in the future it is likely that a section 6673 penalty may be imposed.” 2021 T. C. 98, at p. 8 (Footnote omitted, but it says Chris tried this twice before but got no frivolity warning).

Well, today Judge Tex Copeland hits Chris with the Section 6673 chop.

“Although we concluded in our opinion that Mr. Silver was not liable for the I.R.C. § 6673(a)(1) penalty, Mr. Silver, ignoring our warning in filing his Motion to Vacate or Revise the Court’s Order and Decision, continues to assert groundless arguments, maintain frivolous positions, and pursue matters that we have heard, reviewed, and decided. We conclude that his positions continue to be frivolous and groundless and are a waste of judicial time and resources; and therefore, we will impose an I.R.C. § 6673(a)(1) penalty of $2,000 upon him.” Order, at pp. 2-3.

Don’t mess with Judge Tex.

*Christian D Silver 8805-16 10 12 21

**Christian D Silver 2021 T C Memo 98 8 9 21

A PUBLIC HOLIDAY

In Uncategorized on 10/11/2021 at 09:44

But Not In the District of Columbus

Tax Court is closed today, 10/11/21. It is a Federal holiday, officially Columbus Day, in many quarters Indigenous Peoples’ Day, but not a holiday in the District of Columbus (according to Google, the ultimate authority).

Howbeit (and this is a buzzsaw into which I’ll not stick a finger), there will be none of trial session, opinion, or order, so there will be no more from me.

“MOTHER, MAY I?”

In Uncategorized on 10/08/2021 at 08:45

Memory calls me back seventy years to a sidewalk in The Bronx (and it’s always “The Bronx”; even tourists know that, although, barring the Zoo and the Botanical Gardens, tourists never go there). We played a simple child’s game whose echoes reached even to the Moon (“One Giant Step for Mankind”). Oh, the Steps, the  Baby Steps, the Umbrella Steps, and the Giant Steps! And Neil Armstrong didn’t have to ask “Mother, may I?”

But Earthlings approaching The Glasshouse in the City nonState are required to ask, and are oftentimes rebuked by the Ch J, for taking the wrong steps. And inasmuch as not all such steps are to be found in the Rules, Ch Js must spend a considerable amount of judicial time and effort in directing litigants into right pathways, playing Mother.

Here’s Julee H. Hafner, Docket No. 11144-20S, filed 10/8/21.* Ch J Maurice B. (“Mighty Mo”) Foley again expends scarce judicial resources on such as this.

“… the parties filed a Proposed Stipulated Decision. Upon review, the Court notes that the filing improperly incorporates both a Proposed Stipulated Decision and a Settlement Stipulation as a single submission. Conversely, the two items should be filed separately.” Order, at p. 1.

I cannot discern why the Heavens would fall if these were filed together. In any case, I’m confused. Rule 91(a)(2) says stipulations are to be “comprehensive.” They must embrace all facts, however obtained. The process of stipulation has more than once been described as “the bedrock of Tax Court litigation.”

So why must the parties be ordered to “…file, as separate docket entries, a Proposed Stipulated Decision and a Settlement Stipulation containing a statement of account (Form 3623)”? Order, at p.1.

Granted that IRM 8.17.3.3 (9/3/19) prescribes that form for computing the amount of any settlement at Appeals, and granted same may contain personally identifiable information (although the IRM instructions for preparation thereof are ambiguous, as SSAN is not included), it would be simple enough to seal the entire decision and everything with it. The Genius Baristas do that all the time, with no need for instruction from Ch J Mighty Mo. They even seal orders and opinions that are publicly available on the internet.

*Julee H Hafner 11144-20S 10 8 21

CHOPS ARE IN, DEFICIENCY ISN’T

In Uncategorized on 10/07/2021 at 15:13

It is well-settled; that’s what a Judge says when someone’s case is going down the drain. Today Judge Courtney D. (“CD”) Jones says that to Kevin John, Sr. & Whitney S. Witasick, Docket No. 23069-16, filed 10/7/21*. Btw, to be precise, that’s “Mr. Kevin Witasick, Sr. and Mrs. Whitney S. Witasick (the Witasicks),” Order, at p. 1. I will not comment on this choice of nomenclature, as that might take us rather far afield.

Howbeit, Mr. Kevin went down in USDCWDVA for two (count ’em, two) years’ worth of Section 7201 tax evasion, related to excessive deductions for something called Stoneleigh. 4 Cir affirmed, and the Supremes passed. Arising therefrom, IRS wants partial summary J for the Section 6663 75% fraud chop, claiming collateral estoppel (issue preclusion).

Judge CD has bushelbasketsful of “somber reasoning and copious citation of precedent” that one who has taken a tax evasion fall has a fortiori either pled to, or been convicted on a trial of, fraudulently evading the payment of tax.

Mr. Kevin says “no, I did stipulate, but I did not capitulate.”

“For the years at issue, the parties stipulated that, ‘Respondent contends that if the Court decides that there is a deficiency for the [1999 and 2000 taxable years], petitioner, Kevin Witasick is collaterally estopped from challenging the fraud penalties for the [1999 and 2000 taxable years] because a jury convicted him of  federal income tax evasion pursuant to 26 U.S.C. section 7201. Petitioners dispute this contention.’” Order, at p. 3.

Judge CD says all that means is that Mr. Kevin and IRS agree there’s a dispute, not that IRS can’t move for summary J to resolve it. Mr. Kevin may disagree, but he had his chance to litigate it, and lost.

And neither facts nor law has changed since Mr. Kevin went down, at least not enough to decontrol the criminal conviction. The issue before Tax Court is the same Stoneleigh write-offs that were at issue in the USDCWDVA litigation.

However, Mr. Kevin can fight about the precise amount of the understatements of tax. He cannot fight about whether there were understatements. “While Mr. Witasick may dispute the amount of the deficiencies for tax years 1999 and 2000, we have repeatedly held that taxpayers convicted under section 7201 are precluded from denying the existence of underpayments for the years at issue.” Order, at p. 5. (Citations omitted).

Just add three-quarters of whatever comes out on the trial.

*Witasick 23069-16 10 7 21

PETITION IF YOU WANT TO INTERVENE

In Uncategorized on 10/06/2021 at 16:18

That’s Judge Nega’s admonition to Anthony J. Todisco, Jr., in April J. Gonzales f.k.a. April J. Todisco, Petitioner, and Anthony Todisco, Intervenor, 2021 T. C. Sum. Op. 35, filed 10/6/21*. The fight is about the tax prep fee and the unreimbursed business expenses from Anthony’s construction employment.

It’s the usual indefinite-vs-temporary workplace, and undocumented and reimbursed expenses, but the key concept is what happened to Anthony when he intervened. There were two (count ’em, two) years at issue. Anthony and April jointly petitioned Year One, but only April petitioned Year Two, because there were five (count ’em, five) years between the two years at issue, and Anthony and April got divorced in between.

Anthony intervened for the second year (which only April petitioned). April also sought innocent spousery for both years, and had amended the earlier joint petition to seek only innocent spousery for that year, not to fight the deficiency.

IRS hadn’t ruled on April’s innocent spousery, but folded on the trial. IRS also folded the chops on the trial.

Anthony wanted to fight the deficiencies for the two years, but only got to fight one.

Judge Nega explains.

“As an intervening party, Mr. Todisco is not granted rights or immunities superior to those of the other parties, may not enlarge the issues or alter the nature of the proceeding, and must abide by the Court’s Rules. Since Ms. Gonzales did not, and does not, dispute the underlying deficiency for [Year Two], Mr. Todisco may not independently raise a dispute as to the underlying deficiency. Mr. Todisco passed on his opportunity to do so when he failed to timely file a petition of his own or join Ms. Gonzales’ petition. Therefore, as to Ms. Gonzales, we sustain respondent’s deficiency determinations for the [Year Two] taxable year as set forth in the notice of deficiency….” 2021 T. C. Sum. Op. 35, at pp. 12-13. (Citation omitted).

But since April is getting off on innocent spousery, the sustentation of the deficiency is a nonissue.

Of course, this leaves open the question whether the Year Two SNOD was served on Anthony’s last known address. Judge Nega says Anthony and April separated three years before IRS issued the second SNOD, and April was always timely with her tax filings. It seems Anthony never raised the issue,  but he was pro se and April had attorneys from the Albuquerque Legal Aid LITC. Maybe Anthony only knew about the SNOD when April petitioned it and Anthony got the invitation to intervene. As we don’t know what Anthony filed, or when he filed, or from where he filed, the question remains.

*Todisco 2021 T C Sum Op 35 10 6 21