Attorney-at-Law

Archive for December, 2021|Monthly archive page

A CHRISTMAS PRESENT

In Uncategorized on 12/24/2021 at 12:20

While my nearest and dearest, and colleagues, are generous to me this happy season, I received today a Christmas Present from absolute strangers, who, I am sure, are utterly unaware of my existence. I am sure I never knew of theirs, either, before today.

But please accept my very best thanks, Sara Elizabeth Schweigert & Marcus Schweigert, Docket No. 35000-21, served 12/23/21*.

You made my day. Back on 8/30/21, I prophesied “Might it not be reckless speculation to suggest the number of petitions filed might approach, if not exceed, 35,000 total for calendar 2021?”

See my blogpost “Surge Update,” 8/30/21.

And best holiday wishes to all, readers and non-readers alike.

*35000-21

HE OBLIGES EVEN ME

In Uncategorized on 12/23/2021 at 18:18

I hope I haven’t unduly wearied my readers with my praises of that Obliging Jurist, Judge David Gustafson. Spoiler alert: I’m going to do it again today.

Even those with sieve-like memories will recall my blogpost “Guidelines – Part Deux,” 12/22/21, wherein I again asked for clear guidance as to the imposition of the Section 6673 frivolity chops. Judge Gustafson’s response could not have been more comprehensive or more swiftly delivered if he had come to visit, borrowed Sir Andrew, and typed out his “Order Making Absolute Our Order to Show Cause” in Michael Balice, 17799-18L, filed 12/23/21,* in my livingroom.

You’ll need a long memory to recall Mike. See my blogposts “The Jolly Rounder,” 3/16/15, and “The Jolly Rounder – Part Deux,” 9/24/19.

Judge Gustafson has the whole catalogue of Mike’s numerous frivolities. And he reminds me of the catalogue of factors he promulgated in Leyshon, for which see my blogpost “Another Rounder’s Day,” 6/3/15.

In short, there are guidelines a-plenty, if one but looks for them. And Judge David Gustafson has listed them all, with “somber reasoning and copious citation of precedent.”

This time, Judge Gustafson whangs Mike with another $10K Section 6673 frivolity and delay chop.

*Michael Balice Docket No 17799-18L filed 12 23 21

CAUGHT IN STAYS

In Uncategorized on 12/23/2021 at 12:52

It’s every sailor’s nightmare: dead into the wind, the boat upright but heeling to leeward,, bow not coming over, sails luffing their stuffing out, and the surf on the lee shore getting louder. Happily for IRS, Judge Christian N. (“Speedy”) Weiler gives them an early Christmas present by letting them (partially) get out of stays. Here’s Longwood Preserve Holdings, LLC, Longwood Preserve Investors, LLC, Tax Matters Partner, Docket No. 12421-19, filed 12/23/21,*

My readers will recall that Judge Speedy Weiler stayed all, but then partially unstayed, the Longwoods back in March, so that the parties’ appraisers could eyeball the Longwoods’ high-priced Glynn County, GA boondocks, to come up with a Gunga Din appraisal thereof (“nothin’ much before, An’ rather less than ’arf o’ that be’ind.”). If not, see my blogpost “Staying the Stay,” 3/22/21.

Today Judge Speedy Weiler lifts even more, as he lets IRS go on discovering and developing its case.

” Respondent now seeks a partial lifting of the stay so that he can further engage in discovery to determine the value of the conservation easement at the time of the grant. We agree with respondent that a partial lifting of the stay for the purpose of engaging in discovery related to the value of the conservation easement and a ruling as to whether respondent has met his burden of production under section 6751(b), would narrow the issues for trial and reduce the burden of litigation on the parties and on the court.” Order, at p. 2.

Precisely what IRS needs to discover about what their own people did when is unclear to me. Did IRS seriously think Judge Speedy Weiler’s stay back in March prevented them from reading their own files and talking to their own employees about the chops or anything else?

But more work on developing valuation is definitely to the point. 11 Cir has Hewitt, the grandpappy of the GA conservation dodges, wherefore “highly contestable readings of what it means to be perpetual” are definitely under the appellate electron microscope. As I said in my blogpost hereinabove-cited, “Can’t read too much into this, but just possibly might could be IRS is less than sanguine about what 11 Cir will do.”

*Longwood Preserve Holdings Docket No. 12421-19 12 23 21

GUIDELINES – PART DEUX

In Uncategorized on 12/22/2021 at 15:58

Tax Court is celebrating this pre-festival Palindrome Day by issuing no opinions, and the orders, though many, are routine. So I want to use this caesura to climb once more on my little soapbox to agitate for guidelines when Section 6673 frivolity chops are on the menu. For some backstory, see my blogpost “Guidelines,” 8/12/21.

Here’s the routine warning for first-timers, with which I entirely concur, in Kendra Nicole Scarborough, Docket No. 12198-20, filed 12/22/21*, from Ch J Maurice B (“Mighty Mo”) Foley: “Petitioner’s attention is invited to I.R.C. section 6673(a). If it appears to the Court that a taxpayer’s position in a proceeding before the Court is frivolous or groundless, then the Court can impose a penalty (not to exceed $25,000) on that taxpayer. Petitioner is advised that it appears to the Court that the position she has taken in this case is frivolous or groundless. No penalty will be imposed at this time. However, future submissions advancing a frivolous or groundless position will result in the imposition of a penalty.” Order, at p. 1.

Ch J Mighty Mo doesn’t tell us what delictions Ms Scarborough committed, but that’s tangential. Ms. Scarborough has been warned that whatever she alleged has consequences beyond the mere dismissal of her petition, as happened here.

But beyond that lies a broad, uncharted expanse. Is it $25, $250, $2500, or $25,000? Does the axe fall at petition, motion, discovery, pretrial memo, or trial?

I’m slightly surprised that no wit, wag, or wiseacre, mulcted in four figures for frivolity, doesn’t use the newly-enabled Orders search feature on the DAWSON site to accumulate a bunch orders (hi, Judge Holmes), chopping various petitioners in widely varying amounts for the same, or nearly the same, offenses, and thereby claim abuse of discretion, or excessive fines and penalties, when the chop descends upon them.

I’m not saying that judges can’t have broad discretion to control their courtrooms or prevent contumacious tactics. And I’m not debating the wisdom or otherwise of sentencing guidelines, or mandatory minimum and maximum sentences. It’s not the province of either the executive or the legislative branch to reduce the judiciary to mere puppets.

What I am saying is that a certain consistency is not the hobgoblin of small minds, when penalties imposed vary so widely, with no guidance whatever either to the judge or the frivolite. And I most respectfully suggest the Tax Court bench ponder the suggestion that there should be.

*Kendrta Nicole Scarborough Docket No 12198-20 12 22 21

HEE HAW!

In Uncategorized on 12/21/2021 at 16:12

Paging Peter Reilly

My colleague Peter Reilly, CPA,  and I have spent much time trudging through the “impenetrable morass, unintelligible alike to laymen and lawyers,” that encompasses the “goofy regulation,” Reg. Section 1.183-2(b) and its nine (count ’em, nine) factors. Full many a time have we seen the wealthy hobbyist unhorsed; but at odd whiles the wannabe, though beset by losses, wins through. See, for example, Lowell Den Besten’s story “Cutting Horses Gone to Seed,” 11/25/19.

Today we have rags-to-riches hedgefundie William R. Huff, and his lawyer wife Cathy Markey Huff, 2021 T. C. Memo. 140, filed 12/21/21,* applying their awe-inspiring business skills to try to set up a miniature donkey breeding business (no, I promise you I’m not making this up; I haven’t touched a drop yet today) to supplement daughter Jenny’s income from her dog-grooming gig (which also loses money).

Wm. R. started in Hell’s Kitchen on our Minor Outlying Island, went through City U’s B School, and ended up with his own hedge fund, a brigade of researchers, and AGI north of $21 million. He bought Jenny a NJ farmstead for her doggery, and after his friend Mr P suggested miniature donkey breeding, bought the next-door farm, signed up for the NJ farmers’ relief program (the Garden State, remember), and ran a tight ship and a bunch five-figure losses (Merry Christmas, Judge Holmes).

Judge Patrick J (“Scholar Pat”) Urda finds Wm. R. really truly wanted to make the business profitable, so as to hand it over to Jenny. He relied on Mr P, apparently a seasoned miniaturist, and questioned his advice when it didn’t work. He consulted with every agricultural extensionist he could find, including but without limiting in any way the generality of the foregoing those On The Hill Far Above. He kept good records. When Mr P tried to craft too sweet a deal to sell him some mokes, Cathy intervened to make it fair.

Wm. R. took jackets off the donkeys when it got too cold, changed their feed, electrified their barn, and kept on top of his manager. While busy making millions elsewhere, he was more than a passive investor.

You can read for yourselves Judge Scholar Pat’s dissertation, but, as always, Taishoff has the real story.

Miniature donkeys aren’t fun. “At trial Mr. Huff credibly testified that he derived ‘zero personal pleasure’ from the miniature donkeys. As he explained: ‘It’s a lot of work. * * * I don’t cuddle them. I don’t pet them. * * * [T]here is no satisfaction of having these. These are not pets. This is like livestock.’ In fact, Mr. Huff testified that miniature donkeys are ‘quite ugly’ and look like a ‘gigantic hairball’. Mr. Huff also pointed out that, unlike horses, miniature donkeys could not make up for the hard work with the joys of the saddle. Jennifer echoed this point, explaining that her ‘dad’s kind of a business guy * * * not the cuddly animal type’. Finding Mr. Huff’s cool personal feelings toward the miniature donkeys believable, we conclude that this factor favors the Huffs.” 2021 T. C. Memo. 140, at p. 41.

Wm. R. wasn’t burying telephone numbers of income in donkey droppings. His losses went down during the years at issue;  loss-leader sales were to show farm income to justify the NJ benefits. And if he wanted to give Jenny money, “there were other, significantly easier ways to do it.” 2021 T. C. Memo. 140, at p. 39.

Ultimately, when you show eight figures of AGI and a three-quarter billion-with-a-B net worth, $30K of write-off isn’t much of a shelter. Note that the donkey business was the only thing for which IRS nailed Wm. R. and Cathy for years at issue.

So, as we remember the late great Brig. Gen. Jimmy Stewart, USAF, in “It’s a Wonderful Life,” let’s repeat the immortal greeting “Hee Haw!”

*William R Huff 2021 T C Memo 140 12 21 21

IT CAME FROM OUTER SPACE

In Uncategorized on 12/21/2021 at 12:32

It’s third time up for James E. Hansen & Helen R. Hansen, Docket No. 16157-18, filed 12/21/21; y’all will recall Jim & Helen’s previous visits; if not, see my blogposts “A Current Example,” 11/4/21, and “The Rewards of Virtue,” 12/8/21.

And it’s up, up and away, as IRS wants Judge Morrison to take judicial notice of three (count ’em, three) satellite photographs which appeared on the website of the county wherein Jim’s real estate developing was generating the deductions IRS disallowed.

Are these extraterrestrial snapshots relevant?

Maybe. IRS folded everything but $67K worth of recycled asphalt and some other road improvements pretrial. There followed a Rule 122 for the unfolded $67K, but Judge Morrison hadn’t ruled thereon when IRS folded the entire case: “no deficiency, no chops, no add-ons, no refund.”

Now IRS wants to put in the extraterrestrials, because Jim & Helen want Section 7430 admins and legals.

“The IRS asserts that satellite photos are useful to show the existence of buildings, locations of buildings, and locations of roads. The IRS also asserts that the satellite photos show the condition of roads and whether roads were paved or unpaved.

“The Hansens contend that the satellite photos are irrelevant because they relate only to the merits of the deduction. It is true that the merits of the deduction have been resolved. However, this alone does not preclude the photos from being relevant. There remains the issue of whether the IRS’s position was substantially justified. Sec. 7430(c)(4)(B).

“The Hansens also argue that it is difficult to tell from the photos the ‘condition of the recycled asphalt road improvements’ and the ‘washboard’ nature of roads. Relatedly, the Hansens argue that any changes to the color of roads between the photos was caused by ‘asphalt dust’. They also argue that expert evidence is needed to interpret the photos.

“These last objections do not address that the IRS intends the Court to draw conclusions about the existence of buildings, locations of buildings, and locations of roads. Thus, the Hansens have not argued or shown that there is a reasonable dispute about these facts.” Order, at pp. 2-3.Leaving out the neologism “relatedly,” Judge Morrison says he will take judicial notice, but to what extent and of what details are unclear.

“Neither the Hansens nor the IRS have explained to the Court exactly what which [sic] portions of the roads are in dispute as to their paved-or-unpaved nature or as to their conditions. As to the paved and unpaved nature of roads, and as to the conditions of roads, the Court will not draw any conclusions from the photos that are not obvious from the photos.” Order, at p. 3.

*James E Hansen Docket No 16157-18 12 21 21

LOSING SUMMARY J

In Uncategorized on 12/20/2021 at 15:20

Isn’t Losing Your Case

IRS loses summary J in Johnny H. Brown, Docket No. 14617-17, filed 12/20/21,* but that isn’t necessarily bad. True, IRS also gets a Rule 37(c) deemed admissions order tossed, which deprives them of useful ammo. But Judge James S (“Big Jim”) Halpern says that isn’t the end.

“While Rule 37(c) does not permit the withdrawal of affirmative allegations deemed admitted, see New v. Commissioner, 92 T.C. 1146, 1147-1148 (1989), we have looked to Rule 90(f), permitting the withdrawal of deemed admissions, in considering whether to vacate a Rule 37(c) order, see id. at 1148-1149. Petitioner has averred facts (as to the sales prices of vacuums and the nature of the bank deposits) tending to refute the relevant portions of the deemed admissions. We do not think that the prejudice to respondent would be significant were we to vacate our Rule 37(c) order.  Respondent is free during preparation for trial to ask petitioner for admissions, to which, if he cannot admit the matters for which his admissions are requested, we encourage petitioner to reply.” Order, at p. 9. And Judge Big Jim only tosses so much of the Rule 37(c) as pertains to numbers.

Johnny is a pro se who did a bunch years (hi, Judge Holmes) for tax evasion, but the indictment and the Second Amended Judgment are ambiguous as to whether Section 6651(f) fraudulent failure to file was pled and proven for all years at issue. Since Johnny is pro se, Judge Big Jim also gives him a bye on failure to assign error to the Section 6651(f)s, since he did amend to dispute numbers. If in fact he proves that he didn’t sell all the vacuum cleaners he sold at list price, that shows he made less, and if he can prove he’s entitled to greater COGS or deductions, then he might be OK.

Now it’s true IRS violated Taishoff’s Law of Bedrock Practice: Stipulate, Don’t Capitulate.

“Petitioner does not deny that he was convicted of tax evasion under section  7201 as alleged in count 14 of the indictment, nor does he deny that he failed to file tax returns for the audit years. And while a conviction under section 7201 for tax evasion for a particular year or years collaterally estops the convicted felon from denying fraudulent intent for purposes of section 6651(f) for those years…respondent concedes that there is no estoppel here. He relies principally on the particulars of the conviction and on the deemed admissions to make his case.” Order, at p. 1. (Citation omitted).

IRS’ strategy seems to be that, since maybe Johnny is entitled to more deductions and might show some income isn’t taxable, the Second Amended Judgment might be less than perfect to establish the amount of the chop. And if the numbers come up short on the trial, mox nix.

The good news? IRS has narrowed things down to a trial on numbers. And Johnny has BoP.

*Johnny H Brown Docket No 14617-17 12 20 21

COHAN AS GRINCH?

In Uncategorized on 12/20/2021 at 11:03

A commenter on my blogpost “From My Scrapbook – 12/16/21,” of even date therewith, suggested that Ch J Maurice B (“Mighty Mo”) Foley had gotten the third person singular personal pronoun wrong for Amaka L. Ezan, Docket No. 30234-21, filed 12/20/21.*

Commenter asserted that “Amaka” is “primarily a female name of African – Nigeria origin that means Precious.” I have not independently verified this assertion, so it is offered for the fact that it was asserted, not for the truth of its content.

However, today Ch J Mighty Mo seems to have been right, although applying Cohan to get there.

“… petitioner filed a First Amended Application for Waiver of Filing Fee. However, like petitioner’s initial application, the amended application is captioned in the name of “Joel Landry Ezan”. Order, at p.1.

Alas, despite the time-honored benevolence I invoked on Amaka/Joel’s behalf in my hereinabove-cited blogpost, Cohan overrides A Christmas Carol, and the Court may bear heavily upon the taxpayer/petitioner “whose inexactitude is of his own making.”

And that goes beyond pronouns, even to filing fee.

“As previously noted in the Court’s Order served December 16, 2021, denying petitioner’s initial application, that caption does not match this case. Consequently, the Court is unable to process the amended application. See Rule 23(a)(1), Tax Court Rules of Practice and Procedure.” Order, at p. 1.

So pay up, Amaka/Joel.

*Amaka L. Ezan 30234-21 12 20 21

UN”S”ED, UNCORRECTED

In Uncategorized on 12/17/2021 at 14:36

Douglas Leon Schnitzspahn, Docket No. 8477-20S, filed 12/17/21*, may have lost his “S” today, as his docket number now is 8477-20 tout court, but the typos in his losing former small-claimer remain.

See my blogpost “‘F’ For Effort,” 10/20/21.

Now if that which was formerly a small case becomes a regular case by virtue of an opinion (no decision yet, as a Rule 155 beancount is pending), do regular case rules apply to the Rule 155 beancount?

Awaiting the trials in the 2021 petition tsunami (34,326 and counting as at 2:30 p.m., EDT, 12/17/21).

*Douglas Leon Schnitzspahn Docket No 8477-20 12 17 21

ABUSED BUT KNOWLEDGEABLE?

In Uncategorized on 12/17/2021 at 13:37

In the wrinkled skin of Section 6015(c) allocated or apportioned innocent spousery, actual knowledge of the unreported or overdeducted is a particularly deep wrinkle. When IRS folds but non-requestor objects, who has BoP? Will we ever find out, as the Tax Court bench seems uniformly determined to dodge the issue with “preponderance of the evidence”? And this is the one part of innocent spousery where intent of the non-signer to file jointly carries the day; the sacred “signed under penalty of perjury” requirement is set aside.

Now throw spousal abuse into the mix, set Judge Mark V Holmes to stir the cauldron, and we have innocent spousery bouillabaisse ready to serve, in Elizabeth Kitazono, Petitioner and Christopher K. Chung, Intervenor, Docket No. 3961-20, filed 12/17/21.*

Unhappily, because DAWSON won’t let me cut-and-paste from the transcript of this off-the-bencher, I must refer you to the text online (assuming it isn’t sealed because one document out of fifty in the docket was sealed). This is an enforced impediment to my right and responsibility to report accurately, in ipsissima verba, what the opinion says, and a willful obstruction to the free journalism mandated by Section 7461 and the US Constitution, as amended.

Elizabeth says Chris was abusive. He was also an ultra-successful serial entrepreneur, and while they were married they lived in CA, thus community property is in play. Chris did the returns, and reported much wage and investment income, but left out the constructive dividends he took from his corporation. Elizabeth admits she had income and was adequately withheld, but claims she never saw or signed anything. She wants out from Chris’ unreporteds, IRS folds, but Chris says no.

BoP gets less than a paragraph, Transcript, at p. 8. Judge Holmes isn’t wasting his sweetness on the desert air of an off-the-bencher. Totality of facts and circumstances, y’know.

Now did Elizabeth have an “actual and clear awareness, as opposed to reason to know, of the items giving rise to the deficiency”? Transcript, at p. 8. I’ve blogged this question before. See my blogpost “René Descartes, Thou Should’st Be Living At This Hour,” 1/4/18, and even that wasn’t the first time.

Back to Chris and Elizabeth. Community property is out, because Reg. 1.6015-3(c)(2)(iv) takes out the joint ownership exception if that’s the sole reason to impute actual knowledge to Elizabeth. Next, if the requestor was abused, even if actually knowledgeable but didn’t object for fear of physical injury, then actual knowledge doesn’t count.

Even though Judge Holmes finds Chris physically abused Elizabeth three (count ’em, three) times near when the return were filed, that’s not what prevented her from objecting. Before you join me in yelling “WTF!” read on, Transcript, at p. 11. Chris was making a ton of money legitimately, and they’d invested in real estate early in the marriage, and that was doing well. She had corporate checks paying for childcare and daycare for their kids, but Chris told her this was a company plan. Most importantly, even though she knew the source of the unreporteds was Chris’ company, the issue is the items themselves.

Remember, Elizabeth claimed she knew nothing. Judge Holmes says that because the returns for years at issue showed much wage income and real estate investment income, and IRS conceded on the trial a chunk of claimed constructive dividend deficiencies for a couple years (it is Judge Holmes, after all), Elizabeth couldn’t know that part of the cashflow was constructive dividends.

Taishoff says that since Elizabeth had a BA in biology and worked at the San Francisco Zoo during years at issue, Transcript, at pp. 3-4, I would make a wee wager with Judge Holmes (if that were ethically permissible, which I know it isn’t) that Elizabeth couldn’t define “earnings and profits,” “basis in stock” or “constructive dividend” with a running start and a five-pound handicap; stakes to be a couple ales at Jake’s Saloon.

Judge Holmes lets her off, but needs a Rule 155 beancount for the concessions.

*Elizabeth Kitazono Docket No 3961-20 12 17 21