In Uncategorized on 05/26/2023 at 16:26

Susan A. Spizzirri, Docket No. 13508-22, filed 5/26/23 (a special day for one of my nearest and dearest), has duck-dived. The SPTO was returned by USPS, as was the notice of motion to toss for want of prosecution. Sue never filed Form 10, was off-grid, off-radar, and unresponsive, even when Court personnel reached out at the return date of the motion to toss.

Judge Emin (“Eminent”) Toro, choice in his language as always, gently observes “In the absence of any contact from petitioner, it appears that she no longer intends to prosecute this case.” Order, at pp. 1-2.

OK, so why am I writing this as we approach a three-day weekend, as the barbecue and swimming pool beckon, and a few of us note that this is a time to remember and honor those who died for this country, rather than to hit the Mall or the beach?

Because Judge Eminent holds up the toss.

“In his Motion to Dismiss for Failure to Properly Prosecute, respondent moves that the Court dismiss the case and find in its order that there is a deficiency in income tax due from petitioner in the amount of $7,599.00 for the [year at issue] and a ‘penalty’ due from petitioner in the amount of $3,438.00 for the [year at issue]. The Motion does not specify the basis for the ‘penalty.’ Based on the Court’s review of the record, it appears that the amount that respondent identifies as penalty in his Motion is in fact the sum of the additions to tax under sections 6651(a)(1), 6651(a)(2), and 6654, determined in the notice of deficiency…. Respondent, however, does not address the additions to tax in his Motion, and he has not presented any evidence in support of the additions to tax.” Order, at p. 2.

As this is resolutely a nonpartisan blog, I will not advert to the recent reports that the President was going to give up the increased funding for IRS to make a deal on the debt ceiling. But I can think very loudly, especially when I read something like this.

That said, Judge Eminent digs deep, and, like an infinitely Higher Authority,  gives Sue the Psalm 40:2 treatment.

“Because petitioner is not represented in this case, we construe her pleadings liberally. Reading the Petition with this standard in mind, we conclude that petitioner disputes her liability for the additions to tax under sections 6651(a)(1),  6651(a)(2), and 6654, proposed in the notice of deficiency….. And respondent’s pleadings do not allege specific facts sufficient to sustain the additions to tax he has determined, nor do the allegations in the petition appear to be frivolous so as to relieve respondent of the obligation imposed by section 7491(c). Respondent has the burden of production to come forward with evidence in support of the proposed additions to tax.” Order, at p. 2. (Citations omitted, but get them for your canned briefs cupboard).

So motion denied without prejudice, and let’s have a trial.

Which means that IRS now gets a chance to remedy the shortcomings in their pleadings, with a roadmap how to do so.

And if Sue gets wind thereof, she can get back in the game.


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