Attorney-at-Law

THE SUPREME SILT-STIR CAN-KICK

In Uncategorized on 08/23/2022 at 15:51

I said back in May that the Supreme silt-stir stirred up by Boechler was hardly surprising. Here’s an example: Andrew Wickham & Keisha Wickham, Docket No. 2439-17, filed 8/23/22. After five (count ’em, five) years, including a trip to Bankruptcy Court and a bushelbasketful of status reports, Andy & Keisha have settled with IRS, and just want their case concluded. They move to dismiss.

But their proposed stipulated decision has been on hold since February. IRS can’t tell if the petition was timely filed. Andy & Keisha can’t find the certified mail receipt showing the date they mailed the petition (trusty attorney didn’t come aboard until four months thereafter). The envelope which contained same bears no USPS postmark. So Judge Morrison is reserving decision not only on the stipulated decision, but also on his own motion to toss for want of jurisdiction.

So why not just dismiss?

Well, this case petitions a SNOD, so if there’s jurisdiction, Section 7459(d) says “generally” (love that word!), Tax Court must enter decision for IRS in the amount stated in the SNOD. Except Andy & Keisha, and IRS, agree that Andy & Keisha don’t owe that amount.

So Judge Morrison apparently decides Tax Court has jurisdiction (although he doesn’t say why), at least to the point of saying he won’t toss the petition on jurisdictional grounds.

What to do? Hallmark and Boechler to the rescue!

“Pending before the Court in Hallmark Research Collective v. Commissioner (Docket No. 21284-21) (Hallmark) is a motion asking the Court to vacate its previous order granting dismissal of Hallmark’s deficiency case for lack of jurisdiction. The Hallmark motion to vacate asks the Court to address whether I.R.C. § 6213(a)’s 90-day limit for filing a petition in this Court (after the issuance of a notice of deficiency) is jurisdictional or may be equitably tolled in light of the recent United States Supreme Court decision Boechler, P.C. v. Commissioner, 142 U.S. 1493 (2022).” Order, at p. 2.

 So hold everything (except voluntary dismissal, which Judge Morrison tosses) until Judge David Gustafson unscrambles Hallmark. See my blogpost “Ya Can’t Make This Stuff Up?” 5/10/22.

Taishoff says this is the ultimate can-kick. If Hallmark upholds equitable tolling for SNOD petitions (and I’ve covered that extensively ever since Myers), do we need an evidentiary hearing whether or not Andy & Keisha are entitled to same?

If no equitable tolling, or if there is but Andy & Keisha don’t make the cut, then, as BoP for jurisdiction is on petitioners, and Andy & Keisha can play only the Michael Corleone classical gambit, their petition gets tossed, and the stipulated decision can metamorphose into a Section 7122 settlement agreement.

If there is equitable tolling, and Andy & Keisha make the cut, then I presume the stipulated decision gets entered.

Whatever happens, maybe this ends in another year from now. So why not just toss the petition for want of jurisdiction today?

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