Attorney-at-Law

FOOLISH CONSISTENCY – REDUX

In Uncategorized on 05/18/2022 at 17:27

Once again, the Sage of Concord, Ralph Waldo Emerson: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” And Judge Morrison has a helping of Emerson’s wisdom for Kirk Stevens & Shannon Stevens, Docket No. 2824-20, filed 5/18/22.

Kirk & Shannon’s Sub S signed up with two unrelated entities, MVP and Hedge Red. MVP owned Hedge Red. Kirk & Shannon’s Sub S  signed aboard an “Amended and Restated Bermuda Call Option Agreement” with the aforesaid MVP and Hedge Red.

If this sounds to you like another of those offshore indifferent dodges, it did to IRS, who claimed no economic substance. But Kirk & Shannon claim IRS said it did have economic substance for MVP, and wants documents from IRS’ audit of MVP to show it. IRS says “Section 6013 taxpayer info, therefore cannot be disclosed.”

Kirk & Shannon riposte that Sections 6103(h)(4)(B) and (h)(4)(C) provide exceptions. Judge Morrison isn’t buying.

“The party asserting that an exception allows disclosure of third-party tax returns and tax return information under section 6103 bears the burden to show the information can be disclosed. Mescalero Apache Tribe v. Commissioner, 148 T.C. 291, 299-300 (2017). But respondent’s tax treatment of one taxpayer (here, MVP) is not relevant to the appropriate tax treatment of other taxpayers (here, the petitioners). And respondent is entitled to take inconsistent positions to ensure that it is not “whipsawed” by taxpayers who themselves take inconsistent positions. We therefore conclude that the petitioners have not shown that tax treatment of the option agreement reflected on MVP’s returns directly relates to whether the option agreement has economic substance (see §6103(h)(4)(B)) or that MVP’s return and return information directly relates to whether the agreement has economic substance (see §6103(h)(4)(C).” Order, at p. 2 (Citation omitted, but you’ll find the Mescaleros’ story in my blogpost ‘Indians Not Taxed, Maybe,’ 4/5/17).

Once again, Emerson prevails.

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