But The Supremes Can

My readers no doubt have noted that I have not yet mentioned Boechler P. C.. v. Com’r, 20-1472, decided 4/21/22. Of course, I was made aware of it by my colleague, Peter Reilly, CPA, as soon as it came out. But I don’t cover appeals as a rule; the blogosphere and the trade press have resources far beyond my reach, and would easily beat my poor efforts to cover these. Moreover, I make no representation and undertake no obligation that I will cover appeals from the Tax Court cases I report. And I never reported Boechler, in Tax Court, as it had nothing new. Then.

Now for what I think.

If equitable tolling is adopted in CDP cases, then IRS may have started collection, then have collection stayed by Section 6330(e) on the late-filed petition after the original thirty-day jurisdictional cutoff, then unstayed by Tax Court after trial or summary J, and possibly restayed on appeal. This is chaos.

The Supremes’ psycholinguistic canoe-paddle through our insane English grammar is stirring up a ton of silt. In proof thereof, here’s Ha Tran, Docket No. 19335-21L, filed 4/29/22.

Ha sends letters apparently alleging innocent spousery, although Ch J Maurice B (“Mighty Mo”) Foley doesn’t so characterize them. At all events, Ha has blown the thirty-day cutoff. Pre-Boechler, that would be Game Over. IRS wants summary J tossing Ha.

“In her objection and letter in opposition to respondent’s motion to dismiss, as supplemented, petitioner does not address respondent’s jurisdictional allegations. Rather, petitioner focuses on explaining the merits of her claims and asserting that her ex-spouse is responsible for their joint tax liabilities…. ” Order, at p. 2.

But Ch J Mighty Mo bows down to the mighty.

“However, for the reasons set forth in Boechler, P.C. v. Commissioner, discussed above, we will deny so much of respondent’s motion to dismiss, as supplemented, relating to [four of] petitioner’s…tax years.” Order, at p. 2.

There was no SNOD or NOD for two (count ’em, two) of petitioner’s tax years, so IRS gets summary J tossing those two, at least until the Supremes rev up their engines again.

Oh Judge Holmes, your metaphor is truly a gift that keeps on giving. What a silt-stir this will be!

I can just see petitioners who got tossed two, three, or even ten years ago, come running back, claiming they were wrongfully tossed, and demanding return of property seized and sold a decade ago, and demanding trillions in damages.

I can imagine the glee of Chas Weiss and his trusty attorney DP (for whom see my blogpost “Ya Can’t Make This Stuff Up,” 8/17/16). Now they can petition late, play the equivalent hearing game, and when the game is up, ask for equitable tolling. Or even better, file late and then decide which card to play. Judge Albert G (“Scholar Al”) Lauber can expect a bushelbasketful of cases from rounders, defiers, protesters, wits, wags, and wiseacres, all playing the Boechler gambit, with variations.

The Supremes claim “we have endeavored ‘to bring some discipline’ to use of the jurisdictional label.” Boechler, at p. 3 (Citation omitted).

Yeah, most F affirmativo, roger that. Supremos, like an Authority even higher than your august Court, you have not brought peace but a sword.

I cannot very well complete the above-captioned in a blogpost meant for reading around the family dinner table.

Tracy Renee Valentine, T. C. Memo. 2022-42, filed 4/28/22, asserts she can exclude the same proportion of her Army retirement pension as her 90% VA service-connected disability rating. Her Army disability pension is of course excluded per Section 104(a)(4) and Section 104(b)(2)(D).

But Tracy Renee can’t prove she was ever in actual combat, and her attempt to claim part of her retirement pension resulted from a retroactive reclassification of her disability rating fails because the reclassification took place in the same year the original classification took effect, so no retroactivity.

Service pension exclusions based upon combat-related injuries encompass those injuries “…incurred ‘(i) as a direct result of armed conflict, (ii) while engaged in extrahazardous service, or (iii) under conditions simulating war; or (B) which is caused by an instrumentality of war.” T. C. Memo. 2022-42, at p. 8, footnote 2, citing Section 104(b)(3). Tracy Renee can prove none thereof.

Tracy Renee’s business expenses (multi-level marketing of something called Legal Shield) mostly evaporate based upon insubstantiation.

Her excuse for late-filing likewise falters. Here’s Judge David Gustafson.

“Ms. Valentine argued that she was unable to file a return because she could not find an accountant familiar with section 104(a)(4) (as it applied to her disability payments and retirement distributions).

“We find this argument unpersuasive. Ms. Valentine does not present any evidence to support that she searched for an accountant diligently, nor any communication (such as emails, notes regarding conversations, lists of accountants contacted) to show that any accountant she did contact was unfamiliar with section 104(a)(4), or that such a search could reasonably take a year and a half to complete. Since this addition to tax accrues at 5% per month for a maximum of 25%, a delay of as little as five months yields the maximum addition. So even if Ms. Valentine could show ‘reasonable cause’ for not filing until October 2018 (when the return was a year overdue), a return filed five months later in March 2019 would still accrue the maximum addition to tax.

“Additionally, given the errors on Ms. Valentine’s return in the reporting of her taxable retirement distributions, it does not appear that the accountant Ms. Valentine found had particular competence in this specific area—making her prolonged search both unfruitful and unreasonable. We hold that Ms. Valentine is liable for the addition to tax under section 6651(a)(1) for failure to timely file.” T. C. Memo. 2022-42, at p. 28.

This is a question that bedevils everyone whose income varies widely from year to year. One files the Forms 1040-ES or uses EFTPS, and may or may not have applied any previous year’s overpayment, and prays it adds up to the 90%-100%-110% Section 6654(d) withholding target. I’ve always hit it so far, but a number of times it’s been a close-run thing.

So when you’ve got an overpayment, what do you do? Do you take the refund and try to play catch-up with your estimateds if a big score comes through, or roll it over (putting it out of the reach of temptation)?

It gets expensive if you get it wrong.

Judge Christian N. (“Speedy”) Weiler man-‘splains in an off-the-bencher, Joseph C. Honer, Jr., Docket No. 3985-20, filed 4/28/22. Joe got the numbers wrong on his 1040 for year at issue (YAI), so IRS gave him a SNOD at no extra charge. So there was a deficiency (tax shown on return less than tax due), but Joe also overpaid for YAI, even taking into account the deficiency.

That overpayment would have zeroed Joe’s tax bill for YAI, except Joe applied the stated overpayment to YAI-plus-one, and got a refund for YAI-plus-one.

“Petitioner disputes there is a deficiency in tax owed and points the Court to the amount of tax he paid for [YAI]. In other words, petitioner argues there is no tax deficiency since the total tax due – as adjusted to include the deficiency – would still reflect an overpayment after considering the amounts paid.” Transcript, at p. 6.

No, says Judge Speedy. A deficiency is not the same as an underpayment of tax. Based on the YAI return and the facts stipulated, the amount shown on the YAI return as tax due is less than the tax actually due.

But what about the overpayment?

“Based on the original return as filed by petitioner, there was an original overpayment of the tax of $13,096. Petitioner argues that after the increased tax deficiency of $6,491, no balance should remain since the tax deficiency is less than petitioner’s overpayment amount. However, petitioners [sic]  argument fails to consider how he directed the overpayment amount to be carried forward to [YAI-plus-one]. The IRS honored petitioner’s request and applied $13,096 to petitioner’s [YAI-plus-one] tax year. Consequently, we find no overpayment remains for [YAI].” Transcript, at p. 7.

But can’t Tax Court decide if there was an overpayment?

Sure it can, and sure there was, but the petition puts at issue only YAI, not YAI-plus-one. And Joe threw the overpayment into YAI-plus-one, thus ousting Tax Court of jurisdiction thereover. And apparently got the overpayment refunded for YAI-plus-one

Joe wants costs and sanctions, but the costs are COVID-created, says Judge Speedy, and IRS didn’t violate any Court orders or Rules.

So, practitioner, what do you tell the client? Take the refund, only to have to pay it back with the current-year’s estimateds? Roll it over, and risk not having it available to cover a YAI deficiency? And whatever you tell the client, note that s/he will blame anything that goes wrong on you.

Isn’t tax practice fun?

Judge Christian N. (“Speedy”) Weiler walks us through the steps necessary to obtain a nonconsensual deposition in Buckelew Farm, LLC f/k/a Big K Farms LLC; Big K LLC, Tax Matters Partner, Docket No. 14273-17, filed 4/28/22. And if the Buckelews sound like old friends, I’ve blogged this case four (count ’em, four) times so far, and it looks like a gift that keeps on giving.

In today’s episode, IRS, tired of having been stonewalled for documents since 2017, served a deposition notice. The Buckelews claim IRS hasn’t satisfied the Rule 74(c) barriers to this “extraordinary” means of discovery, namely, viz., and to wit “(1) Whether the movant has established a specific and compelling basis for the deposition; (2) Whether the movant intends the deposition to serve as more than a substitute for cross-examination at trial; and  (3) Whether the movant has had prior opportunities to obtain the desired information or could obtain it through other means or from another source.” Order, at p. 2.

Well, Judge Speedy Weiler finds what IRS wants is certainly relevant (and remember, the relevance bar is pretty low).

“Respondent seeks to depose the Partnership on the following: details surrounding the easement creation, donation, and the deduction; details concerning any opinions of value regarding the underlying property to the easement; details surrounding the marketing and selling of the easement deduction to potential investors; details surrounding the creation of the easement; details surrounding the records maintained by the Partnership regarding the transaction; and information reflective of the ‘state of mind’ of the Partnership and defenses relating to asserted penalties.

“The Court finds that respondent has established a specific and compelling need for the deposition of the Partnership. Second, respondent has shown that he intends the deposition to serve as more than a substitute for cross-examination at trial. Lastly, it appears that the Partnership has direct knowledge related to relevant issues in this case and respondent’s efforts to obtain this information through other means have been (in full or in part) unsuccessful.” Order, at pp. 4-5.

And that IRS’ counsel got to eyeball the site changes none of the above.

So hold the deposition before Memorial Day.

Taishoff says we know why depositions are “extraordinary” in Tax Court cases. The sixty-buck-ticket-to-justice never provides a result that would cover the costs of counsel, preparation, stenographic and transcription services, travel, and loss of time, which are the invariable concomitants of a deposition. See my blogpost “Don’t Suppose You Can Depose,” 12/2/13.

The ordinary run-of-the-mill pro se facing a low four-figure deficiency couldn’t afford counsel for even a two-hour deposition. But that same pro se isn’t marketing and selling an eight-figure writeoff either.

In cases like the Buckelews, where there’s a $45 million deduction at issue, with multiplex counsel subbing out and subbing in, it shouldn’t take four (count ’em, four) years to obtain discovery.

And while we’re discussing changes to the Tax Court Rules of Practice and Procedure, maybe so it might could possibly be that the one-size-fits-all deposition rules need a rule-of-scale provision. Maybe in any deficiency with tax due over $100K, depositions should be treated as they are in every other court I know of.

Otherwise the CLE merchants can add to their inventory the title of this blogpost hereinabove set forth.

Just about a year ago I asked the question “For This We Needed a Full-Dress T. C.?” 6/17/21. I was talking about voluntary dismissal of petitions other than in deficiency cases, where Section 7459(d) mandates entry of decision in favor of Respondent in the amount specified in the SNOD.

But Ch J Maurice B (“Mighty Mo”) Foley’s proposed revisions to the Tax Court Rules of Practice and Procedure show no sign that Judge Gale’s proposed Rule regarding voluntary dismissals reached Ch J Mighty Mo.

So today I most respectfully suggest that we do need more than a full-dress T. C. every time a petitioner wants to drop a non-deficiency case. A trudge through the FRCP and analogous case law is wasteful. As there is at present no Rule 59, might it not be well to renumber present Rule 58 Miscellaneous as Rule 59, and insert at Rule 58 the following.

58. Voluntary Dismissal.

(a) Petitioner may move to dismiss the petition by so moving before Respondent serves an answer or a motion for summary judgment. At any time, Petitioner, any Intervenor, and Respondent may file a stipulation of dismissal signed by all parties who have appeared. Absent such stipulation, a case may be voluntarily dismissed only by court order. Any such dismissal should generally be granted unless any Intervenor or Respondent will suffer clear legal prejudice, other than the mere prospect of a subsequent petition, as a result. If an order granting a voluntary dismissal is issued, the dismissal is deemed to be without prejudice and the lawsuit is treated as if it had never been filed.

(b) Any order in a deficiency proceeding made pursuant to the provisions this Rule 58 shall comply with the provisions of IRC 7459(d).

Ch. Clk. Servoss, please copy.

STJ Peter Panuthos has a gloss on the role of trial witnesses, both expert and inexpert (fact), in Michael A. Fiumara, Docket No. 1829-17, filed 4/27/22.

Mike wants his expert, whom I’ll call Ken, in as a witness, both as to report and on the stand. IRS says no, and STJ Panuthos goes with IRS.

“Opinion testimony is admissible if and because it will assist the trier of fact to understand evidence that will determine a fact in issue. See Fed. R. Evid. 702. Testimony of a proffered expert that expresses a legal conclusion does not assist the trier of fact and is not admissible. An expert who is merely an advocate of a party’s position does not assist the trier of fact in understanding the evidence or in determining a fact in issue. The determination of whether proffered expert testimony is helpful to the trier of fact is a matter within our sound discretion.

“It is not enough that a witness is qualified in some way related to the subject matter at hand. We have previously ruled that expert testimony about what the law is or that directs the finder of fact on how to apply the law in tax deficiency proceedings does not assist the trier of fact and is, thus inadmissible. Feinberg v. Commissioner, T.C. Memo. 2017-211, at *10; Fed. R. Evid. 702(a).” Order, at p. 2 (Citations omitted, but see my blogpost “Cohan and COGS,” 10/23/17 for the Feinberg story).

So Ken is out, right? Yes, as an expert. But not as a witness. There are fact questions about some of Mike’s bank deposits. “Having participated in the examination, [Ken]’s testimony may remain helpful to analyze whether some bank deposits should not have been included as income, relative to the fraud penalty.” Order, at p. 2, footnote 2.

Both IRS and Mike want a witness sequestered, per Rule 145. Mike wants a RA out, and IRS wants one of Mike’s witnesses (role unstated) out.

“The purpose of this rule is to prevent witnesses from tailoring their testimony and to minimize altered, uncandid testimony. Rule 145(a)(3) and Rule 615(3) of the FRE provide an exception to the exclusion for persons whose presence can be shown to be essential to the presentation of such party’s cause. Generally, the court has discretion in determining whether a witness falls within one of the exceptions.” Order, at p. 2 (Citations omitted).

And without telling us why, STJ Panuthos finds both the RA and Mike’s witness are essential to the presentation of the respective cases.

Takeaway One- Rule 145s are hard to win. There’s no jury to be misled by cooked-to-order or revised testimony. A Tax Court case, if properly Branertoned, should have which facts are disputed and the contentions of the parties in respect thereof nailed down. And Tax Court judges are used to sifting truth from witness blather.

Takeaway Two- Don’t rend your garments in mourning if your expert witness gets tossed. If s/he has personal knowledge of a disputed fact, s/he may be allowed as a fact witness, and then you can see what part of his/her testimony you can get in on the trial.

Judge Emin (“Eminent”) Toro surveys the post-Taxpayer First Act Section 6015(e)(7) landscape in Sydney Ann Chaney Thomas, Docket No. 12982-20, filed 4/26/22. There’s a chart at pp. 1-2.

The biggest issue is the administrative record. Since the statute provides, in pertinent part “a determination made under this section shall be reviewed de novo by the Tax Court and shall be based upon (A) the administrative record established at the time of the determination….” Order, at p. 2, how does the Court deal with what’s in it?

Here the admin record includes letters (two of which are notarized) from petitioner’s friends. IRS says “hearsay.” Of course, the letters are hearsay. But Judge Eminent isn’t so sure about excluding them.

“In general, the exclusionary rule in Rule 802 of the Federal Rules of Evidence provides that hearsay is not admissible. By its terms, however, the exclusionary rule applies unless a federal statute, the Federal Rules of Evidence (the ‘Rule Against Hearsay’), or a rule prescribed by the Supreme Court provides otherwise. Fed. R. Evid. 802. It would appear that, by requiring that we review innocent spouse cases ‘based upon . . . the administrative record’, I.R.C. §6015(e)(7) provides otherwise for purposes of this case. We recognize, however, that paragraph (e)(7) is a new provision that our Court has not yet analyzed in depth in the context of evidentiary matters, and we would welcome the parties’ views on this point.” Order, at p. 3. (Footnote omitted).

Likewise, relevance of what is in the admin record is an issue, although the relevance bar is low. Cf. FRE 401.

But really interesting is IRS counsel’s attempt to put in Sydney Ann’s personal blogposts. These weren’t in the admin record, but counsel claims “newly discovered,” Section 6015(e)(7)(B).

Judge Eminent has a dinner menu of questions and hints-and-kinks about this Stout Cortezery (yes, I know it was Balboa, but Keats thought Cortez scanned better), including without in any way limiting the generality of the foregoing a dictionary chaw worthy of ex-Ch J Michael B (“Iron Mike”) Thornton.

“Should the phrase ‘newly discovered evidence’ be given its ordinary meaning (e.g., evidence that was not “found out” before a relevant time) or should it be viewed as a term of art? See, e.g., Discover, OED.com, https://www.oed.com/view/Entry/54005?redirectedFrom=discover& (last visited April 14, 2022); see also Discover, Mirriam-Webster.com, https://www.merriam-webster.com/dictionary/discover (last visited April 14, 2022) defining ‘discover’ in relevant part to mean ‘to obtain sight or knowledge of for the first time’ or to ‘find out’?” Order, at p. 5.

But read all nine (count ’em, nine) conundra that Judge Eminent unloads, Order at pp. 5-6. And if your head starts to spin, lie down and rest a while. While you’re lying down and rising up, spare a thought for poor Sydney Ann, who’s pro se.

There’s also argy-bargy about stuff from a Ch 13 filing Sydney Ann made but that got tossed for nonpayment. IRS claims that’s not newly-discovered, but IRS and Sydney Ann stiped in some of the bankruptcy file, so why is IRS ambushed by this other stuff?

The real takeaway here is that, if this case goes any farther, the Cincinnati (that’s the reviewers of innocent spousery, not Washington’s officers) will start vigorously pruning the admin record, to keep out anything that helps the innocent. So keep copies of everything you send to the Cincinnati, and get itemized receipts for what you sent. Be prepared for a top-fuel challenge to the admin record proffered at petition time if what you sent, like love for the late great John Lennon, “has a nasty habit of disappearing overnight.”

As the CLE floggers never fail to point out, win your case at discovery. But Judge Eminent has a new twist: when it comes to innocent spousery, win your case at newly-discovery.

The elusive Michael T. Sestak, T. C.  Memo. 2022-41, filed 4/25/22, is back, but not for further epistolary jousting with IRS. This time Mike wants a tax loss for the forced sale of the Thai real estate whereat he parked the bribe money he took for selling US immigration visas.

Judge Christian N. (“Speedy”) Weiler has the sorry tale of Mike’s delictions. As part of the fall he took in USDCDC, Mike agreed to the sale, proceeds to go toward the $6 million money judgment the US of A was taking against him.

The sale fell short of what Mike had paid. Mike claims he was renting the Thai property. He wants a loss offsetting his liability.

“Federal courts consistently have disallowed loss deductions where the deduction would frustrate a sharply defined federal or state policy. The test of ‘nondeductibility on public policy grounds under section 165’ is the severity and immediacy of the frustration of a ‘sharply defined national or state policy’ that would result from allowance of the deduction.” T. C. Memo. 2022-41, at p. 7.

The cases Mike cites are payments to other than Federal or State governments. And public policy is clear: forfeitures sting. Neither Section 165 nor Section 162 helps Mike, and he didn’t argue Section 212. This is not an income tax case, this is a forfeiture of ill-gotten gains.

Mike doesn’t get a Taishoff “Good Try,” but he does get a Taishoff “Metallica”.

I will spare Chief Clerk Servoss any correspondence from me anent Ch J Maurice B (“Mighty Mo”) Foley’s proposed amendments to the Rules. Rather than offer my comments and suggestions for embalming in an administrative record that, more likely than not, will never see the light of day, I can secure a wider audience for them on my own account, right here.

Today I revert yet again to Rule 24, untouched by Ch J Mighty Mo’s latest effort.

Here’s Tumi Staffing, Inc., Docket No. 8667-22L, filed 4/25/22. And here’s why Rule 24 should be brought to the end of the Eighteenth Century, when law firms first in the courtroom bloomed in Our Fair City.

“When a petition is electronically filed with the Court, the combination of the username and password of the individual eFiling the petition serves as the signature of the individual filing the petition. If the petition is being filed by multiple practitioners, the Petition should be signed by the additional practitioners. However,  review shows that the petition bears a stylized signature of counsel Jaime Vasquez and does not bear signatures of counsels Adrian Ochoa and Victor Viser. The Tax Court’s procedures require at a minimum a digital image of an actual signature or use of an authentication program. See DAWSON User Guides on the Court’s website, http://www.ustaxcourt.gov. If petitioner’s counsels wish to be recognized as counsel of record in this case, it will be necessary at this juncture to electronically file an entry of appearance on behalf of petitioner in accordance with Rule 24 Tax Court Rules of Practice and Procedure. Petitioners’ counsel may obtain an Entry of Appearance form under ‘Case Related Forms’ on the Tax Court’s website at http://www.ustaxcourt.gov/case_related_forms.html.” Order, at p. 1.

Of course, all Tax Court regulars know the three attorneys hereinabove referred to are on the team of a well-known and well-regarded tax litigation law firm.

So why no law firm entry of appearance form?

With a firm entry of appearance, a single click can enter all of its USTC admitted attorneys and appoint a lead attorney for all communications. It will be the duty of the lead attorney to arrange for any individual or team actions in the case, including making and responding to motions, making any necessary appearances (in-person or Zoomgov), conducting phoneathons, covering discovery, and anything else.

Whenever a client engages or retains a law firm, retainer and engagement agreements come from the law firms, not any individual attorney.

Lawyers take vacations, fall ill, have family emergencies, take family leave, attend CLE courses and conventions, are working on more than one matter at a time, have appearances scheduled at the same date and time for more than one case. Anyone who has ever been in a law firm knows that s/he may be called upon at any time to “cover” for a colleague with less than ten minutes’ notice.

Every other court I know of recognizes this, and lets any admitted attorney in a firm cover a case.

Why is Tax Court different?

it’s the usual Section 6511 credit-for-overpayment lookback case, but John R. Moran & Carolyn P. Moran, Docket No. 1934-20, filed 4/22/22, signed a Form 872 SOL extender, so Section 6511(c)(2) is in play. This gives an extended lookback to six (count ’em, six) months after assessment can be made under the extender deal. But this only covers “…the portion of the tax paid after the execution of the agreement and before the filing of the claim or the making of the credit or refund, as the case may be, plus the portion of the tax paid within the period which would be applicable under subsection (b)(2) if a claim had been filed on the date the agreement was executed.” Order, at pp. 4-5.

Subsection (b)(2) provides the three-year-or-two-year lookback.

John & Carolyn claim three years, because they made an oral claim at exam.

Unhappily, they stiped that they had made no claim prior to issuance of the SNOD. Judge Ashford is not letting them out. So two years doesn’t help them, as the clock has run.

But even if John & Carolyn had made an oral claim and not stiped, an oral claim is a no-go.

“While a taxpayer’s request for refund that does not meet all of the requirements of a formal claim for refund may nevertheless be treated as a claim that may later be perfected for the purposes of the limitations of section 6511…, as respondent also correctly points out, even an informal request for refund must include a written component…. Conversations between a taxpayer or a taxpayer’s representative and an IRS revenue agent may not serve as a substitute for a written claim for refund. Thus, even if petitioners’ allegations regarding oral statements made during the examination of the [year at issue] return are accepted as true, those statements do not constitute a valid informal or protective claim for refund.” Order, at pp. 5-6 (Citations omitted).

IRS agrees there’s a $29K overpayment, but John & Carolyn get none of it, either by way of cash or credit.

Takeaway- Ya gotta try it. Make the written claim, if you have any colorable grounds. Make it early, at exam. Make it again in your petition. Just don’t be frivolous; even if you aren’t chopped, you blow your credibility if you frivol.