Attorney-at-Law

“SUBSTANTIALLY PREVAILED”

In Uncategorized on 12/16/2022 at 17:40

Just finished an enlightening CLE on Our Fair State’s Freedom Of Information Law (Public Officers Law §§84-90), especially the provision for legal fees (§89(4)(c)(i) and (ii)). In any case “…against such agency involved, reasonable attorney’s fees and other  litigation  costs reasonably incurred  by such person in any case under the provisions of  this section in which such person has substantially prevailed, and when  the agency failed to respond to a request or appeal within the statutory  time;  and  (ii)  shall assess, against such agency involved, reasonable  attorney’s fees and other litigation costs reasonably incurred by such  person  in  any  case under the provisions of this section in which such  person has substantially prevailed and the court finds that the agency  had no reasonable basis for denying access.”

And our Courts have held that if the agency folds when they’re sued, the person who brings the case has still “substantially prevailed.”

I’ll bet Bryan Edward Menge, Docket No. 12155-21L, filed 12/16/22, would like to have a similar provision in Sections 6702 and 6320, as IRS concedes the Section 6702 false return chop, and the SNOD, and released the NFTL they gave him at no extra charge. There was also a NITL, but that’s off the menu here.

So all Judge David Gustafson can do is dismiss Bryan’ Edward’s petition as moot, since there’s neither SNOD nor NOD to consider, and IRS has agreed not to reimpose the Section 6702 chop, unlike Matty Vigon, whose tale I told in my blogpost “Crafty – Akin to the Weasel,” 7/24/17.

Sidetrack: The laughing little girl I described in the foregoing blogpost just paid us a visit, which gladdened my heart. She’s back home in TX now.

Judge David Gustafson rings the changes.

“…we see no aspect of this case that is not moot. Collection itself is moot, because the liabilities have been abated and the NFTL has been released. There is thus no liability to collect, and the assessment that would be the predicate for collection is missing entirely. Assuming that “underlying liability” issues, see sec.  6330(c)(2)(B), are not precluded from this lien case by virtue of Mr. Menge having had a prior ‘opportunity’ to litigate them in the levy case, No. 17117-18L (an assumption that seems improbable), those liability issues are also moot here because re-assessment of the liabilities could not occur. Re-assessment of the [Year Two] tax liability would, because of the passage of time, be barred by the statute of limitations, sec. 6501(a); and although the section 6702 penalty is understood to have no statute of limitations, re-assessment of that penalty is foreclosed by the Commissioner’s motion. This is not an instance like Vigon, in which ‘[t]he defect [in the Commissioner’s showing of mootness was] not simply that he fails to persuade us that in fact he will not really reassess; rather, he does not even assert that he will not reassess. He asserts instead that “it is not clear whether respondent will reassess”.’ 149 T.C. at 111. In this case, by contrast, the Commissioner states unequivocally: ‘Respondent affirms that he will not reassess the [Year One] frivolous return penalty against petitioner with respect to frivolous submissions already received by respondent with respect to [Year One]’. (Doc. 17, para. 8.).” Order, at p. 3.

OK, so march out Bryan Edward, you won.

Except Bryan Edward says he didn’t.

“Petitioner timely filed his petition in T.C. docket No. 12155-21L therefore petitioner asserts he has a due process right to be heard in the T.C on the over 1600 hours of his time spent defending himself against unlawful policies and procedures implemented against BM [i.e., petitioner Bryan Menge] and BEM [Bryan E. Menge Construction] by federal contractors, state actors, the RI Superior Court, HUD, the DOL,  the IRS since 2011, the Federal District Court for the District of RI and the T.C. [Doc. 23 at 16.].” Order, at p. 3.

And Bryan Edward has been here before with the same story. See my blogpost “SMH,” 12/15/21.

No luck this time either.

“No such claims by Mr. Menge or his company against any of these entities could fall within our jurisdiction in this case—except his claims against the IRS regarding the liens for his 2013 and 2014 liabilities, but those, as we have shown, are moot.” Order, at pp. 3-4.

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