Attorney-at-Law

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

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