Attorney-at-Law

Archive for July, 2022|Monthly archive page

ON THE ROCK

In Uncategorized on 07/31/2022 at 20:18

This my blog has finally made it to the Pillars of Hercules. Today, 7/31/22, for the first time, my blog has been read in Gibraltar.

Takes me back to my young day when I collected QSL cards.

Now for Monaco, Andorra, and San Marino.

FACTS ARE EVERYTHING

In Uncategorized on 07/29/2022 at 19:32

And they are an essential element of every judicial opinion, even a five-page off-the-bencher. I’m truly surprised at CSTJ Lew (“Especially With That Name”) Carluzzo making an offhanded observation that “(T)he relevant facts and controlling law are well known to the parties and need not be discussed in this bench opinion.” Transcript, at p. 4.

Judge, I’ve not the slightest doubt that petitioner and respondent gave the facts and controlling law the Job 19:24 treatment.

But what about the rest of us? I know that off-the-benchers are not precedent; at best are law of the case. But we practitioners read them, learn, mark and inwardly digest them. Especially in a Section 7502 mailed-is-filed case, where extrinsic evidence is received and carries the day for petitioners.

Great that the employee of petitioners’ trusty (former?) attorney was a good witness, and that the firm’s records were top-fuel. But what about postmark? Was there one? If so, was it legible? What is the source of data for ETA at the Glasshouse for a petition posted from wherever? Where is this case Golsenized, and does that CCA allow extrinsic evidence in a Section 7502? And does ABA Model Rule 3.7 play any part here?

I’m thinking maybe, when Section 7502 is in play, it might could be a good idea to try for an off–the-bench resolution, so that these vexatious questions can be avoided if someone can tell a good story.

I blog off-the-benchers, though the trade press and blogosphere don’t. And my readers read them, maybe because the trade press and the blogosphere don’t bother reporting them.

I say Judge Buch got it right: opinions are a critical component of what we understand to be the law. See my blogpost “Cracking Up,” 2/27/14.

Oh, the case is Gina M. Ledesma & Jullian Ledesma, Docket No. 13685-20, filed 7/29/22.

THE CASE OF THE MISSING HEIR

In Uncategorized on 07/29/2022 at 11:31

Judge Gale, or the parties, seem to have lost an heir somewhere along the tangled trail of Lawrence W. Nelson, III, Deceased and Jacalyn A. Thompson, Docket No. 18374-15, filed 7/29/22.

IRS wants to toss the late Lawrence (a/k/a Lonnie), who died post-petition, for want of prosecution.

“Respondent represents that he has been advised that no representative or fiduciary is currently authorized to act on behalf of the estate of Mr. Nelson and that Mr. Nelson’s only ascertainable heirs at law are his surviving spouse, petitioner Jacalyn A. Thompson  (Ms. Thompson), and his surviving issue, Brittany Thompson. Respondent further represents that neither Ms. Thompson nor Mr. Nelson’s surviving issue objects to our granting the Motion.” Order, at p. 1.

Jacalyn has established innocent spousery for all but about $51K of the deficiency and add-ons, and has stiped to settled issues with IRS. Order, at pp. 8-9.

So let’s do a Thackeray, and “shut up the box and the puppets, for our play is played out,” right?

Except.

Remember my blogpost “A Voyage of Discovery – Part Deux,” 10/1/21. All y’all will recall one ANR, possibly another surviving issue of the late Lawrence a/k/a Lonnie. A docket search reveals no order resolving whether ANR is in or out. If her fate is buried in a status report, perhaps it should be recited in the Order and Decision for the sake of completeness.

Yes, Tax Court is truly a voyage of discovery.

CARDPLAYER

In Uncategorized on 07/28/2022 at 15:49

That’s Jamie B. Hall, T. C. Memo. 2022-82, filed 7/28/22. Jamie’s argument why she doesn’t owe income tax on two trusts (which aren’t trusts at all; no trust instruments, no transfers of title to property) is that Social Security Administration issued a Social Security card to her.

“Petitioner argues that the Social Security Administration created the Jamie Bennett Hall trust by assigning to her a Social Security number and a Social Security card. She argues that the property originally held in the purported trust is the Social Security card and that the Social Security Administration purportedly indicated an intention to form the trust by sending her this card. Petitioner states that the beneficiary of the purported Jamie Bennett Hall trust is the U.S. Government, and therefore the trust is a U.S. Government agency trust and is not taxable. Petitioner further argued that, because respondent determined that she is liable for deficiencies and additions to tax as an individual, respondent used ‘inappropriate forms to come up with Notices of Deficiency.’” T. C. Memo. 2022-82, at p. 4.

Judge Alina I. (“AIM”) Marshall ripostes to this gibberish with a walking barrage of “somber reasoning and copious citation of precedent.”

This is old-time, worn-out protester jive. Jamie goes down for the whole boat, deficiency, add-ons, and chops.

“The issuance of petitioner’s Social Security card is not a transfer of property that creates a trust, as petitioner contends. Petitioner has not provided any legitimate trust documents forming the purported trust. The purported trust does not reflect economic reality and is not recognized for income tax purposes. Accordingly, we sustain respondent’s deficiency determinations….” T. C. Memo. 2022-81, at p. 5.

Judge AIM doesn’t mention Section 6673. Maybe she should have.

ABE LINCOLN, THOU SHOULD’ST BE LIVING AT THIS HOUR – PART DEUX

In Uncategorized on 07/28/2022 at 15:30

I was reminded of a much-quoted essay written by President Lincoln shortly after he returned to the private practice of law following his single term in the House of Representatives.

To see what brought this 150-year-old document back to memory, read Judge Christian N. (“Speedy”) Weiler’s opinion in Charles G. Kinney, T. C. Memo. 2022-81, filed 7/28/22.

Now read what President Lincoln had to say.

“Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.”

MAYBE NOT SO PERDUTO

In Uncategorized on 07/28/2022 at 14:56

My readers with ultra-sharp memories may remember Indu Rawat, Docket No. 15340-16, filed 7/28/22. If you, dear reader, are not one such, check out my blogposts “Che Se Firma È Perduto – Part Deux,” 7/20/21, and “That’s the Word!” 8/26/21.

Well today, after argy-bargy in extenso, Judge David Gustafson tosses his order from last July, gives Indu summary J on the non-Inventory stuff, but denies as to Indu’s claim that she was a NRA in year at issue; that’s Non0-Resident Alien, not a pistol-packin’ Momma. The issue, of course, is that if Indu was a NRA in year at issue, she owes no tax on the disposition of the inventory after she sold her partnership interest. Again, the 2017 amendment to Section 864(c)(8) doesn’t apply.

First, the Form 870-LT Indu and IRS signed is a Section 7122 settlement, but only binds the parties to what they explicitly agreed, not collateral issues. Second, the many and varied status reports the parties filed, wherein Indu’s NRA status was repeatedly mentioned, isn’t a concession by IRS. Indu said she was a NRA in her petition, which IRS denied in its answer.

“However, instead of putting forth evidence to support her assertion, petitioner asks us to draw inferences from statements of the parties in joint status reports— statements that merely clarify the issues set forth in the petition. The petition asserted that Ms. Rawat was a nonresident alien, and the Commissioner’s answer expressly denied that assertion. When he thereafter joined in status reports—stating ‘The petition filed in this case presents two primary issues for resolution, (1) whether petitioner, as a nonresident alien, is subject to tax on that portion of the gain on the sale of her interest in a U.S. partnership that is attributable to inventory” (Doc. 18 at 2) (emphasis added)—we think he did not admit that she was a nonresident alien but rather joined in stating a disputed issue in the case of which her status was a component. It is not impossible that someone joining such a statement would intend thereby to signal his concession of nonresident alien status, previously disputed, but the Commissioner insists (Doc. 41 at 11) that he did not so intend. In resolving petitioner’s motion, we draw all inferences in the Commissioner’s favor, and we therefore decline to infer that his joining this status report constituted a concession of Ms. Rawat’s alleged nonresident alien status.” Order, at p. 7.

And Indu didn’t submit her own declaration.

So before tossing the three bucks at the Glasshouse Copycats in the hopes of eliciting hot stuff in status reports, be advised that there may be less than meets the eye.

IT’S INDEED AN ILL WIND

In Uncategorized on 07/27/2022 at 18:25

I’ll reserve commentary on the policy and political considerations that underlay the 2017 Tax Cuts and Jobs Act; at least, I’ll not comment here, preserving my “firm, impassioned stress” that this remain a nonpolitical blog.

But today’s off-the-bencher by STJ Peter (“HB”) Panuthos, Joseph C. Malek & Melinda J . Malek v . Commissioner, Docket No . 9082-21S, filed 7/27/22, does let me make a nonpolitical comment: while eliminating the unreimbursed employee business expenses deduction may have worked a hardship on some taxpayers, it eased the burden on Tax Court Judges and STJs, who no longer have to listen to petitioners fail to provide any basis wherewith to Cohanize even a few bucks’ deduction.

It’s indeed an ill wind that blows no one good.

I VOLUNTEER – AGAIN

In Uncategorized on 07/26/2022 at 16:00

It’s been six (count ’em, six) years since I broke the rule I learned so long ago: “If it moves, salute it; if it doesn’t, paint it; and never volunteer.” See my blogpost “I Volunteer,” 4/6/16. But I feel moved to try again.

CSTJ Lewis (“That Spelling Needs No Correction”) Carluzzo gives appropriately short shrift to Andrea J. Darnell, Docket No. 16752-21S, filed 7/26/22, an off-the-bencher. Andrea’s been here before; see my blogpost “Frivol, But Admit the Truth,” 11/13/20.

And Andrea pulls the same move: files late, claims no income when she had income, admits she got the money but claims it isn’t taxable. IRS wants a Section 6673 chop (this is Andrea’s third trip to Tax Court), but IRS’ fold on a chop at the trial looks like a typo to me.

“Respondent now concedes the section 6663(a) penalty.” Transcript, at p. 4.

Where’s the fraud? Fraudulent nonfiling (Section 6651(f)) wasn’t mentioned, and Andrea was only ten (count ’em, ten) days late with her return.

Or maybe IRS folded the Section 6662(a) accuracy chop.

“Petitioner’s position in this proceeding is most certainly frivolous, and this is not the first case that she initiated in this Court in which she advanced a frivolous position. Nevertheless, respondent’s concession of the section 6662(a) penalty constrains us to deny so much of respondent’s motion that requests the imposition of a section 6673 penalty. After all, petitioner’s … Federal income liability would have been greater if she had not initiated this proceeding.” Transcript, at pp. 6-7.

In either case, somebody needs to proofread these transcripts. I volunteer, again. For free, again.

And IRS needs to reconsider its trial folds. I can help there, too.

AIN’T WHAT SHE USED TO BE

In Uncategorized on 07/25/2022 at 11:57

Gray Mare Farms, LLC, Joel Presley, Tax Matters Partner, Docket No. 6682-20, filed 7/25/22, is yet another of IRS’ attempt to run the Reg. Section 1.170A-14(g)(6) Hewitt rapids with the Judge Guy (not the retired STJ, the 6 Cir concurrer) Section 170(h)(5)(A) summary J countergambit.

Judge Mary Ann (“S. E. C. = She Eschews Cognomens”) Cohen isn’t buying.

“Respondent relies in part on language in the easement that petitioner admits is ‘perhaps inartful’. If the language is ambiguous, it may be necessary to determine the intent of the parties to the deed of easement. Summary judgment on the issue of intent, when it becomes a material fact, is inappropriate.” Order, at p. 1.

It seems I must again try my readers’ patience with the time-worn observation that any lawyer who can’t find an ambiguity should find another way to make a living.

Nothing like “highly contestable readings of what it means to be perpetual,” eh, Judge Holmes?

But wait, there’s more! As the late-night telehucksters say.

“The parties are proceeding with valuation of the property and may be able to resolve this case or narrow the issues for trial. Thus, summary judgment on the disputed issue of law is premature and unproductive.” Order, at pp. 1-2.

So Judge S. E. C. Cohen declines the old Gray Mare’s invitation to come over to the side of 11 Cir and embrace Hewitt. Seems the Gray Mare’s boondocks lie on the downside of the Mason-Dixon Line, in 4 Cir.

Looks like more short-Circuitry coming up.

 

YEAH, ROGER THAT

In Uncategorized on 07/23/2022 at 01:18

I see where Chief Whistler John (“Hoppin’ John”) Hinman is thrilled to bits as he caps off thirty-nine (count ’em, thirty-nine) years at IRS by taking the Captain’s chair at the Ogden Sunset Palace.

But Hoppin’ John’s paean to his new command rings wee bit hollow to this somewhat jaded observer. “My office ensures that award claims are reviewed by the appropriate IRS business unit, determines whether an award should be paid and the percentage of any award, and ensures that approved awards are paid.” Ibid., as my expensive colleagues say.

Ya wanna bet a few pence on that one, boss? I got ya covered.

Looks like Hoppin’ John never read Mandy Mobley Li, No. 20-1245, 1/11/22. As far as DC Cir is concerned, Hoppin’ John’s hopping crew need do nothing for nothing, and no court can review their nonfeasance.

Let’s see just how zealously Hoppin’ John’s hopping crew actually reviews claims and moves them to collection and award.