In Uncategorized on 09/22/2022 at 15:39

No, not a new variant of COVID. Today Judge Albert G (“Scholar Al”) Lauber demonstrates yet again the fetters of brass which bind Tax Court in Oconee Landing Property, LLC, Oconee Landing Investors, LLC, Tax Matters Partner, filed 9/22/22.

In our last episode, IRS wanted to depose two non-parties; see my blogpost “Why He Canceled Tuesday,” 10/12/21. There followed the abortive waddle through the Fifth Amendment, more particularly bounded and described in my blogpost “45 and the Fifth Amendment,” 8/16/22, wherein the two recalcitrants were handed 45 (count ’em, 45) written interrogatories in lieu of another sit-down.

But their ever-inventive counsel, the Great Chieftain of the Jersey Boys, tries yet again to snatch transactional immunity from the brazen fetters aforesaid. Frantic Frank Agostino, Esq., first asked IRS’ counsel to dish whether the twain were subjects or targets, whether IRS would seek to have them immunized, or stip to immunity. Remember, when Judge Scholar Al went with the 45 questions, he directed that if Mr. Agostino raised any Fifth Amendment objections, he “…would need to supply a detailed explanation laying out the ground for the claim, cognizant that the Fifth Amendment only protects against real dangers, and not remote or speculative possibilities. ” Order, at p. 2.

IRS gave Frank the right-about-face and served the interrogatories. So Frank moves for Judge Scholar Al to do the honors.

I give Frank every credit. His never-say-die approach, his inexhaustible fount of improvisation, his willingness to do the Don Quixote, his endless pro bono efforts, earn him an honored place among practitioners.

But Judge Scholar Al is implacable.

“It is well established that this Court lacks jurisdiction to grant criminal immunity to a witness who may be called to testify before the Tax Court. This power resides solely with the U.S. District Courts and only upon the request of the U.S.  Attorney for the applicable district. 18 U.S.C. §§6001-6003; see, e.g., Coulter v. Commissioner, 82 T.C. 580, 583 (1984) (finding that ‘the Tax Court is not authorized to grant immunity’ to a taxpayer); Hartman v. Commissioner, 65 T.C. 542, 547 (1975) (denying a taxpayer’s request for immunity ‘since jurisdiction to take such action is vested exclusively in the United States District Courts, and then only upon application of a United States Attorney’); Reynolds v. Commissioner, T.C. Memo. 1981-364, 42 T.C.M. (CCH) 395, 397 (holding that a taxpayer’s request that we grant him immunity ‘is spurious since jurisdiction to take such action is vested exclusively in the U.S. District Courts, and then only upon application of a U.S. Attorney’). It is equally well established that this Court lacks jurisdiction to compel the IRS to seek an order of immunity for a witness. See Hartman, 65 T.C. at 547–48; Hershberger v. Commissioner, T.C. Memo. 1979-522 (finding that a taxpayer’s request that the Tax Court order the IRS to grant him transactional immunity was baseless). This Court has no  ‘inherent authority’ to confer immunity on a witness. Such discretionary power is statutorily reserved to the Executive Branch and is available to neither the Tax Court nor U.S. district courts (absent an application from a U.S. Attorney). See 18 U.S.C. §§ 6001-6005.” Order, at p. 2.

In the alternative, Frank asks that the duo be held to be “qualified appraisers” who prepared “qualified appraisals,” but those are fact questions for trial.

I don’t know if Frank is a New Jersey Devils fan, but he sure is a follower of the hockey players’ mantra: “Shoot the puck, it might go in.”


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