In Uncategorized on 04/12/2022 at 16:08

This is the famous ABA Model Rule 3.7 story: a lawyer cannot be a witness in a case where he is the advocate, lest he have to argue his own credibility, and confuse and mislead the jury between his/her (unsworn) argument and sworn testimony, and otherwise wear two irreconcilable hats. But today Judge David Gustafson allows a lawyer’s own statements to furnish basis for Appeals’ conclusion that George Gilmore, Docket No. 192-21L, filed 4/12/22, is not eligible for CNC.

George owes $1 million in self-reported taxes over a four (count ’em, four) year stretch. He got a NITL therefor at no extra charge, goes to Appeals claiming he can’t pay, but has assets he’s trying to sell. George never asks for an IA or OIC. But nine (count ’em, nine) months later, nothing has moved, despite contracts with past-due closing dates. Appeals NODs the levy.

George claims abuse of direction because Appeals “…(1) failing to analyze the liquidity of his assets; (2) failing to set forth factual findings in support of the determination that he did not make reasonable efforts to liquidate his assets; and (3) failing to give him a reasonable time to submit a proposal for liquidating his assets.” Order, at p. 6.

First, George told Appeals what the assets he was trying to sell should bring. No reason not to take him at his word. Taishoff says it’s an old rule that the owner of property can testify as to what that property is worth.

Second, as for George’s efforts to sell, the calendar tells the tale. “Mr. Gilmore first made assurances that he was liquidating his assets to pay his tax liabilities in March 2020. He made these same assurances seven months later in October 2020 when he provided copies of contracts in support of his expectation that he would be able to liquidate his assets. However, these reassurances were hardly reassuring, since they showed that the passage of six months had not yielded actual sales. The contracts listed closing dates and release dates that had come and gone. When another two months went by with no sales, we cannot criticize IRS Appeals’ conclusion in December 2020 that Mr. Gilmore had been given ‘an appropriate amount of time’.” Order, at p. 7. (Reference to record omitted).

As for a reasonable time to sell, “…he did not offer any interim payment schedule or propose any other collection alternative. He simply asked the IRS to agree that it should leave him alone for an unstated amount of time without requiring him to make any payment. We see no abuse of discretion in SO V’s determination that, based upon Mr. Gilmore’s own representations and documents, Mr. Gilmore should have been able to make some payment towards his tax liabilities,  and that he was therefore not eligible for a ‘currently not collectible’ collection alternative based on a complete inability to pay. Because in his CDP hearing Mr. Gilmore raised only his supposed inability to pay, the question whether Mr. Gilmore had an ability to make any payment was the only issue that SO V was required to consider in the CDP hearing.” Order, at p. 7 (Name omitted).

The SO could rely on what Mr. Gilmore told him.

“Mr. Gilmore owed more than $1 million. The information that he had provided to IRS Appeals indicated that Mr. Gilmore owned assets, that asset sales were imminent, and that the proceeds could be used to satisfy Mr. Gilmore’s tax liabilities.  However, in the 9 months from the proposal of asset liquidation to the issuance of the notice of determination there were no payments to the IRS, and SO V did not abuse his discretion in sustaining the proposed levies under these facts and circumstances.” Order, at p. 8. (Name omitted).

I wonder if this is the same George Gilmore, now or formerly of Ocean County, NJ. If it is not, I apologize. If it is, a Google search will provide some interesting background.

Judge Travis A. (“Tag”) Greaves has another SSA 530 IC vs EE reclassification, but since it’s a piscine barrelshoot for IRS I won’t bother with the whole story of Pediatric Impressions Home Health, Inc., T. C. Memo. 2022-35, filed 4/12/22.

The Impressionists get slugged with FICA/FUTA for 99 (count ’em, 99) home healthcare providers, who provide care for special-needs children. Of course, the command-and-control by the Impressionists is complete.

I note only that the Impressionists changed from classifying the providers as employees to treating them as ICs, without any change in the operation, even for the same employees.

“Petitioner’s administrator, president, and sole shareholder, Ms. Agbo, testified that she decided to change the classification of its workers on the advice of petitioner’s certified public accountant, but she failed to offer any evidence to support this claim.” T. C. Memo. 2022-35, at p. 13.

No worry, Ms. Agbo. I’m sure IRS will be auditing your CPA’s clients to ascertain exactly what advice s/he was giving them. And it might get a wee bit expensive for them, too.



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