In Uncategorized on 01/14/2022 at 13:30

No, not Chuck Barris’ 1965 creation; Judge David Gustafson does not deal with such whimsicalities. Today he has a dubious date on two dubious documents, and needs more info to decide whether to bounce Richard Lipsky, Docket No. 5531-21L, filed 1/14/22.

Rich is fighting TFRP. IRS claims his mailed protest is four days late and a lot more than four dollars short.  But the Letter 1153 opportunity-to-contest bears either a “sloppy handwritten date of 8/8/2019” as allegedly mailed to Rich (Order, at p. 2), or no date at all, as faxed 8/13/19 to Rich’s representative. And of course which date matters for the sixty (count ’em, sixty) day cutoff to protest a TFRP.

IRS’ counsel makes a rookie error. “The declarant certifying the exhibits is the Commissioner’s counsel in this case, not the Revenue Officer…whose name appears on the Letter 1153 and who was apparently responsible to prepare it and have it mailed (nor even the settlement officer at Appeals who wrote in his case notes that the letter was ‘dated 08-08-2019′). That is, the Commissioner does not authenticate the handwritten date by anyone who could claim personal knowledge of the letter’s preparation.” Order, at p. 3 (Name omitted).

I remember, from long-ago days, my elders and betters ding, dinging into my youthful ears that “an affidavit from an attorney with no personal knowledge of the matters therein set forth is worthless.” It could be, however, that counsel’s certification was merely a table of contents and transmittal note of the attachments to the motion, and averred nothing more than “this is what Appeals handed me.” Of course, there should have been an affidavit (declaration) from the RO authenticating preparation and mailing procedures. But Monday morning quarterback is such an easy position to play.

Howbeit, we got an admin record with two (count ’em, two) versions of Letter 1153, and they don’t agree. And the sixty-day cutoff in the Letter 1153 is an “administratively imposed deadline.” Order, at p. 3. It isn’t statutory or regulatory, so equitable tolling isn’t necessary. If Rich is four days late, how is IRS hurt?

As usual, IRS wants summary J tossing Rich. Sure, Rich gets every favorable inference as nonmovant, so Judge Gustafson could just toss the motion.


“We might therefore simply deny the motion for summary judgment, but to do so would hardly advance the case. It may be that the Commissioner can make a showing of the actual ‘date of’ the Letter 1153; and it may be that he can demonstrate that it was not an abuse of discretion to hold Mr. Lipsky to the 60-day deadline stated in the letter. If so, then summary judgment may be a useful means for presenting the issues in this case.” Order, at p. 3.

Trust Judge Gustafson: tossing the motion kicks the cliché down the road, but it doesn’t make the case go away, or resolve anything for anybody.

Rich hasn’t spoken to IRS, and he’d best get with the program. Let Rich and IRS’ counsel confabulate, and let Rich “disclose any information that he has (such as the original Letter 1153) that bears on the ‘date of’ that letter. If the parties can stipulate the fact of the date (if any) that appeared on the original Letter 1153, then they should do so.” Order, at p. 3.

So in two weeks’ time, let IRS either move to supplement its motion for summary J, or else remand to Appeals to hear Rich’s bœuf (nudge nudge, wink wink).

This is why, among other things, I am a Judge David Gustafson fan.


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