In Uncategorized on 04/02/2022 at 21:06

Apparently 9 Cir is a Clint Eastwood fan club, because Judge Bea thinks taxpayers should gamble on whether IRS will follow through on its threat to impose condign chops, when the RA’s supervisor finally gets around to checking on what his/her subordinates are up to.

Of course, by that time the bludgeoning of settlements out of terrified taxpayers will long since have taken place.

Here’s Laidlaw’s Harley Davidson Sales, Inc. v. Commissioner, Docket No. 20-73420, 3/25/22, courtesy of my indefatigable colleague and Forbes blogger Peter Reilly, CPA, in whose debt I once again stand. Mr Reilly notes I’ve blogged this case before, but not on this point. He missed my blogpost “Old Bill Wins Another One,” 1/16/20, where I did.

Howbeit, Judge Bea and the 9 Cir panel decided that they are “textualists,” so they go back to the old “assessment” dictionary chaw. 9 Cir forgets that “the letter killeth but the spirit giveth life,” as a far higher authority than 9 Cir put it.

And there’s this gem: “But, at the time RA C sent the [30-day] letter, it could not have been guaranteed that, as the letter stated, if Taxpayer took no action by the June 27, 2011, deadline, ‘we will assess the penalty and begin collection procedures.’ This is because I.R.C. § 6751(b)(1) provides that certain penalties, including penalties under § 6707A, cannot be assessed without written supervisory approval. And, as it turns out, no supervisor had yet provided written approval of the § 6707A penalty that the letter represented would be assessed against Taxpayer.” (Name omitted). Exactly how the taxpayer was to know this is nowhere stated.

Judge, by the time assessment comes, the whole case could be litigated. Section 6751(b) is a drafter’s disaster, but what Congress wanted is clear: a second look, however minimal a second look, before anyone says “penalty.”

Michael Corleone only had to threaten; no one took him up on the threat.

Here’s what I said back in 2016, when the first dictionary chaw case was decided. See my blogpost “A Non-Christmas Story,”12/26/16.

“The answer isn’t in the dictionary, nor in The Oxford English Grammar.

“Either Congress meant that someone, who has oversight responsibility for the IRS employee who chooses to impose a penalty, exercises, and documents the exercise of,  that responsibility before the taxpayer first gets hit with the chop, or they meant something unintelligible from the plain words (without philological gloss) that appear on the page.

“As best I, a mere old-time, beaten-up, beaten-down, single-shingle dirt lawyer ‘of limited experience and mediocre qualifications’ can discern, Congress proposed that IRS stop using penalties to bully taxpayers.

“And the way to do it, said Congress, is to require a second look before dropping the bomb. And that’s a documented second look by a specific individual senior to the would-be bomber.

“If the second look needn’t be given or documented until after a Tax Court litigation, wherein the taxpayer may have paid or incurred monumental legal fees, costs and disbursements, finally to be justified; or worse, where the taxpayer is unjustly mulcted but cannot afford even the “reasonable rates” of Eric William Johnson, Esq., what exactly is the point of the statute?

“Moreover, if the famous ‘second look’ can be accomplished by a robosigner with an illegible signature many years after said initial determination, the statute becomes positively farcical.

“If ever an opinion needed reargument, it’s 147 T. C. 16.”

If ever an opinion needed reargument, it’s Docket No. 20-73420, 3/25/22.

  1. The Department of Justice announced March 1, 2022 that five tax shelter promoters and two appraisers have been charged with conspiracy to defraud the United States and other crimes arising from their promotion of syndicated conservation easements which the indictment alleges were abusive tax shelters. The indictment was issued on February 24, 2022, and alleges that the co-conspirators promoted, marketed and sold partnership units and guaranteed a 4 to 1 tax deduction ratio to their clients and then provided spreadsheets to the appraisers which identified the conservation easement valuations necessary to provide the correct tax deduction ratio to their clients. The alleged activities date back as far as 2012.


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