In Uncategorized on 11/08/2021 at 20:45

But Always Time to Do It Over

STJ Diana L (“The Taxpayers’ Friend”) Leyden bucks a conjoined pair of SO flubs back to Appeals, and tells Appeals to put a single SO on both, in Stephen L. Barkan and Janice Barkan, 16625-19L, filed 11/8/21*, and 18595-19L,* of even title and date therewith. I’ll refer only to 16625-19L herein.

A couple interesting procedural oddities (hi, Judge Holmes) are found early in 16625-19L. IRS moves for summary J. “The record does not indicate why respondent provided a declaration from a respondent’s counsel rather than from the settlement officers who conducted the CDP hearings.” Order, at p. 2, footnote 4.

And there were two (count ’em, two) CDPs, each with a different SO for different years, and each SO apparently unaware of the existence of the other. So the record is sufficiently tangled to make STJ Di unable to ascertain whether Steve and Jan had a chance to challenge underlying liability (the issue here is underpaid and late-filed self-reporteds, so no SNODs).

Even Steve’s and Jan’s trusty attorney was so confused as to which SO was dealing with what, that he never filed a response to the motion for summary J. After reading this tangle, I don’t blame him.

STJ Di: “There is a genuine dispute as to whether petitioners disputed their underlying liabilities for tax years 2011, 2012, 2013,[SO R] and 2016 [SO J] during their two CDP hearings, given that both petitioners’ counsel and the SOs assigned to each CDP hearing were seemingly unaware that the Appeals Office was working multiple CDP levy cases for petitioners with different SOs and tax periods. Due to this confusion, the record is unclear as to whether petitioners disputed their underlying liabilities during their CDP hearings for the tax years in issue, which is a material fact. Therefore, summary adjudication is not appropriate at this time.” Order, at p. 6.

As for the declaration of counsel in place of one by an SO or two in support of a motion for summary J, there might be a reason. The rule we learned in Civil Procedure 101 is that the affidavit or declaration of an attorney with no personal knowledge of the facts therein alleged is worthless. But if there truly are no material facts in dispute, those undisputed facts are readily discernable from documents exchanged and undisputed by the parties, and copies of all thereof are attached to the declaration or affidavit, then counsel’s declaration is only a table of contents or document transmittal sheet.

Here, obviously, that isn’t the case.

*Stephen L. Barkan and Janice Barkan, 16625-19L 11 8 21

*Stephen L. Barkan and Janiuce Barkan 18595-19L 11 8 21


Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: