Here’s a new one for the CLE merchants, from an off-the-bencher by Judge Mark V. Holmes. When it comes sending a statute sideways, Judge Holmes has few equals, although “a decent respect for the opinion of mankind” compels me to credit Judge Emin (“Eminent”) Toro for his role in my blogpost “Eminently Evidentiary,” 4/26/22.

Pia O. Bacigalupi, Docket No. 20480-21, filed 10/27/22, wants innocent spousery, after deadbeat loved-once divorced her and left her with $300K of unpaid self-reporteds.

Well, Pia is post-Taxpayer First, so Section 6015(e)(7) says that all Tax Court review must be de novo, but all Tax Court can consider is the administrative record. How one can have a trial de novo when all the evidence has been admitted and all facts found is beyond me. Of course, there are the exceptions for newly-discovered evidence or previously unavailable evidence.

Pia has a sad tale to tell. Loved-once concealed his stockbrokering income, Pia only made money designing jewelry and a part-time salesclerk job. She testifies to some equity splitting in the marital domicile with loved-once, wherein she still lives; Judge Holmes appears to discount the value thereof with no very extensive evidence.

Son’s $50K per year college bill, which got paid from marital assets, likewise gets de novo treatment, as Judge Holmes discards the other cases as decided under abuse-of-discretion standard. “I’m not sure that paying college tuition is this day and age is a lavish lifestyle.” Transcript, at p. 15.

Anyway, the bottom line is that Pia tells her sad tale on the trial in Tax Court, on the stand, under oath. And maybe that’s newly-discovered evidence.

“However, in this particular case, I will assume the testimony given under oath and subject to cross-examination, like the testimony given by Mrs. Bacigalupi, is this newly-discovered evidence, because when she applied for innocent spouse relief, she wasn’t able to give sworn testimony and was not subject to cross-examination.” Transcript, at p. 5.

Taishoff says, so now every Appeals hearing from a denial of innocent spousery means a full-dress trial at Appeals, with counsel for IRS, sworn direct testimony, rebuttal testimony, cross-examination of witnesses, and evidentiary rulings? And all that must be part of the administrative record? Btw, since when did AOs get the right to swear witnesses and make evidentiary rulings? And where will the court reporters come from? Do innocent spouse hearings now get Administrative Law Judges?

Not so fast.

“As I said, I’m not deciding this for all cases in the future.” Transcript, at p. 5.

It’s been a wee while since Judge Holmes last slid a spanner into a Congressional gearjammer. See my blogpost “Judge, He Didn’t Mean It,” 5/17/12.

Even though this is a small-claimer don’t-quote-me, I can see some of my colleagues giving this gambit a try.