Attorney-at-Law

LEO TOLSTOY, THOU SHOULD’S BE LIVING AT THIS HOUR

In Uncategorized on 06/06/2022 at 15:56

Judge Vasquez affords Section 6015(f) innocent spousery (pre-6015(e)(7) stick-to-the-admin-recorditis) to Jan E. Pocock, T. C. Memo. 2022-55, filed 6/6/22.

But it’s a close call. Judge Vasquez has to go through 40-plus years of family history, bringing to mind Tolstoy’s famous opening: “Happy families are all alike; every unhappy family is unhappy in its own way.”

I urge all y’all to read the whole opinion, all twenty-seven (count ’em, twenty-seven) pages. We have the Vietnam veteran with PTSD, his wife who won’t seek divorce on religious grounds, her ailing mother, her abused children (now adults), and her borderline awareness of her husband’s taxdodging (and he looted his mother’ estate, from which he was removed as personal representative).

IRS has an interesting gambit that they play too late, trying to use the State fraudulent conveyances law to get back money and the family home that the husband gave the wife pre-audit; Judge Vasquez blows it off when it comes up on Simultaneously Answering Brief.

Anyway, by the time the CDP is decided both Jan and husband are in CNC. And he’s in counseling, and they’re both broke.

Judge Vasquez has a full-dress trial, with Jan and children testifying, and IRS Special Agent testifying for IRS. Jan is listed as pro se, but it sure looks like she was well-coached.

Now my astute readers will shoot out their lips and wag their heads, saying. “Yeah, but Section 6015(e)(7) does away with innocent spousery trials; whatever Jan produced on the trial wasn’t newly-discovered or previously unavailable, and since it wasn’t in the admin record (else why produce it at trial?), why do we care about this today?”

Because both Judge Vasquez and Count Tolstoy have a practice tip for y’all.

Whatever you’d produce on a trial like this, produce it at the CDP. CDP is the new trial. If the SO or AO refuses to let in your evidence, note your proffer and their refusal with particularity and include your statement of objections in the admin record; and at Tax Court, demand that the admin record be resettled to put in what was excluded by the SO or AO. And if that happens to be testimony, well, let’s take it now.

Remember, “every unhappy family is unhappy in its own way.” Just make sure the unhappy family isn’t unhappy with your representation.

Edited to add, 6/7/22: If the same astute readers object that all that will happen, if the admin record is successfully challenged,  is a remand, then the issue of witness credibility must be determined by the Judge. The SO or AO should not be the sole trier of fact. Remember Judge Vasquez’s famous dictum:”‘As a trier of fact, it is our duty to listen to the testimony, observe the demeanor of the witnesses, weigh the evidence, and determine what we believe.’ Kropp v. Commissioner, T.C. Memo. 2000-148, 2000 Tax Ct. Memo LEXIS 178, at *9. In Diaz v.Commissioner, 58 T.C. 560, 564 (1972), we observed that the process of distilling truth from the testimony of witnesses, whose demeanor we observe and whose credibility we evaluate, ‘is the daily grist of judicial life.’” T. C. Memo. 2022-55, at p. 15.

Everybody’s testimony looks like everybody else’s on paper; nobody’s testimony looks the same as anybody else’s on the stand.

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