Attorney-at-Law

MARRIED, WITH COUNSEL

In Uncategorized on 01/24/2023 at 14:28

I’ve blogged a lot of cases where spouses were represented by the same counsel at Appeals or in Tax Court, and where the conflict-of-interest toss was routinely applied. But not every joint representation is inherently conflicted, as Judge David Gustafson obligingly informs us in Joanne Gilmore, Docket 189-21L, filed 1/24/23.

Joanne is still married to George, whose story I told in my blogpost “Argue Your Own Credibility,” 4/12/22. Her latest beef is that, at her CDP,  no one from Appeals or her representative mentioned innocent spousery. But her rep did mention Joanne was seeking independent advice, and in fact she did file Form 8857, litigate the shootdown of her plea at Appeals, and stiped out with IRS.

Judge Gustafson: “… it is by no means true that a conflict exists every time one spouse seeks relief under section 6015. Where the two spouses remain married and have a shared financial situation, the grant of relief may have little practical effect on the non-requesting spouse, or might even have an advantageous effect on the household as a whole. In some innocent spouse cases, the non-requesting spouse does not intervene to oppose relief, and sometimes a non-requesting spouse affirmatively concurs in the granting of the relief. Therefore, a conflict cannot be presumed.” Order, at p. 11.

Joanne had an interest in the properties George didn’t sell, so Judge Gustafson isn’t remanding her to Appeals to get the CNC she desired. She still might have assets that would yield cash. And as for reallocating the overpayments of tax she made, which were credited to the earliest of the still-collectible years, IRS always wants to get the most for years where SOL on collection is running out, and anyway, Joanne stiped that away.

Judge Gustafson says remand here would be futile. Partial summary J for IRS.

Taishoff still says “Stipulate, don’t capitulate.”

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