This time it’s not the petitioner who plays the game, but his daughter, who files MFJ with estranged spouse (to whom she’s still married, although living apart). The petitioner meanwhile files HOH and for child tax credit, dependencies, and EITC for his minor grandchildren, whom he supports and who live with him for the requisite.

His trusty attorney claims IRS foot-faulted by not pleading as an affirmative defense the MFJ filed by daughter and spouse for year at issue, taking the grandkids as dependents, etc. But STJ Peter (“HB”) Panuthos rejects that in a footnote to a Section 7491(c) BoP shift.

Here’s the footnote in Nowran Gopi, 2021 T. C. Sum. Op. 41*, filed 12/2/21, at p. 6, footnote 4,

“In the alternative petitioner asserts that respondent bears the burden of proof in this matter because respondent’s determination was based upon the production of a [year at issue] joint tax return filed by petitioner’s daughter and her husband. Petitioner claims that the production of said tax return constitutes an affirmative defense under Rules 39 and 142(a). Rule 39 describes the pleading of special matters. The introduction into evidence of Ms. K and Mr. E’s [year at issue] joint tax return is not a special matter and does not constitute an affirmative defense.” (Names omitted).

Gowran never claimed Ms. K wasn’t married to Mr. E, nor that their return for year at issue was invalid. Whatever their domestic problems, apparently they were married and did take Gowran’s grandchildren on their 1040 MFJ.

I do think that IRS should have pled K and E’s 1040 MFJ. Rule 39 is more expansive than STJ Panuthos states here. But this is a small-claimer, where the Rules are relaxed both ways.

Note IRS folded the Section 6662(a) chop. This saves STJ Panuthos from deciding whether Gowran’s lack of knowledge of K’s marriage and MFJ filing would give him a good faith win on the chops. It’s an interesting question, but perhaps resolution should await a fully-briefed bigtime case.

*Nowran Gopi 2021 T C Sum Op 41 12 2 21