The Japanese term for “goodbye” applies both to Aruki Yamada, T. C. Memo. 2023-70, filed 6/13/23, and to the Genius Baristas. Aruki and spouse Yasuka Ogawa left the US of A (of which Aruki was a dual US-+Japanese national, and Yasuko had work visas) without bothering to notify IRS or USPS of their new address in Yokohama.

This deprives them of Section 7430 admins and legals, as IRS was substantially justified in believing that the unreported bank deposits aggregating more than $1.1 million over the four (count ’em, four) years at issue were US-sourced, whereas in truth and in fact they were sourced in The Land of the Rising Sun, and Aruki and Yasuko were long gone at the time.

Judge Goeke: “At the time the deposits were made, Mr. Yamada was a U.S. citizen. Although Ms. Ogawa was not a U.S. citizen, respondent believed her to be a lawful permanent resident at that time because petitioners never provided respondent with an updated mailing address. Petitioners concede that they failed to notify respondent of their address change once they left the United States. Because respondent was under the belief that petitioners remained U.S. residents at the time the deposits were made, it was reasonable for respondent to assume that petitioners remained liable for U.S. tax on their worldwide income.

“Respondent therefore was substantially justified in asserting that petitioners were liable for tax on the unreported income solely on the basis of the bank deposit analyses.” T. C. Memo. 2023-70, at p. 8. (Citation omitted).

Their trusty attorney was dead when their motion for admins and legals was decided. T. C. Memo. 2023-70, at p. 1, footnote 2.

Oh yes, the Genius Baristas. There are more opinions today, but DAWSON, the new, improved, jim-handy (yeah right, roger that) website, has crashed. Here’s their story.

“Investigating – We are observing errors for users on the east coast while attempting to use DAWSON. We are currently investigating the issue. It appears this issue is due to an outage by our service provider.”

Sayonara.

It’s been said that stipulations are the “bedrock of Tax Court practice,” but Taishoff says when Dixieland Boondockery is in play, motions in limine are the new “bedrock of Tax Court practice.” And Judge Emin (“Eminent”) Toro is busily engaged in sorting out witnesses both expert, inexpert, percipient, and none of the above, as exemplified by Seabrook Property, LLC, Seabrook Manager, LLC, Tax Matters Partner, Docket No. 5071-21, filed 6/12/23.

The Seabrooks want Mac (name omitted) to “Testify as a Lay Opinion Witness with Percipient Expert Witness Knowledge Without a Written Report,” and so move, Order, at p. 1. IRS’ counsel want to preclude any of Mac’s expertising; Mac is a GA-Registered Forester and  has four (count ’em, four) decades of experience “regarding forestry practices on the Seabrook Property and the impact of those practices on conservation.” Order, at p. 1.

IRS says the Seabrooks are violating Judge Eminent’s scheduling order with this percipient expert witness with no report jive. Judge Eminent shuts that down, but Mac can rebut IRS’ witnesses.

“Petitioner’s Motion, however, also refers to [Mac] at several points as a ‘percipient expert witness.’ And it makes the following representations about [Mac’s] intended testimony: ‘he will use his specialized knowledge as a Registered Forester to testify as to how active forest management on the Seabrook Property interacts with the habitats on the Seabrook Property’ and his testimony will include ‘how effective timber management has helped habitats generally and not destroy[ed] them.’  These and other similar statements in petitioner’s Motion could be interpreted as petitioner requesting that [Mac] be allowed to testify as an expert witness without filing an expert report. Our Pretrial Scheduling Order… mirrors what the parties proposed and specifically states that ‘[a] party is prohibited from calling any expert witness as part of its case-in-chief if that party has not exchanged and lodged an expert witness report….’ An exception is provided when the expert testimony is offered as rebuttal testimony; however, petitioner’s Motion does not indicate that [Mac’s] testimony is being offered for such a purpose. Accordingly, to the extent petitioner’s Motion requests that [Mac]  be allowed to testify as an expert witness, we will deny it.” Order, at p. 2. (Citations omitted, but get them; this could be a good one for the next Slaughter of the Innocents, the next Tax Court admission exam.)

So Mac is a lay (nonexpert) witness on direct, but only as to what he actually did and does for the Seabrooks; but he can testify, whether percipient or not but an expert nevertheless, on rebuttal.

It’s a many-times-told tale, and I might have skipped blogging it, but just this morning a colleague asked about the income tax consequences of a proposed settlement into which his client was about to enter, and of course I replied to his question with the question first written at the head hereof. I had not yet seen STJ Diana L (“Sidewalks of New York”) Leyden’s off-the-bencher in Troy Christopher Keenan, Docket No. 29299-21S, filed 6/12/23. but STJ Di’s analysis of the deal between Troy and his former employer is a template for cases even more general than the Section 104(a)(2) physical-vs-emotional injury here at issue.

Troy was a ranch manager who quarreled with some clients of the ranch, and stopped showing up. He claimed wrongful termination, and the ranch settled with him by paying $4K for medical insurance, $5K for dropping an age discrimination claim, and $66K for “emotional distress damages and relocation expenses,” Transcript, at p. 5.

Troy’s attempt to use Section 104(a)(2) to avoid tax on the settlement flops.

Troy’s claim he had some physical injuries attended to founders on want of proof that the settlement proceeds were used to pay the expenses thereof, or that his health insurance covered any part thereof. And payments for emotional injuries are exempt only to the extent that said payments are used for medical treatment thereof; again, no proof that proceeds or insurance were used to provide any.

What really was settled, says STJ Di, is an employment dispute. Troy credibly testified that he thought he was being paid for emotional injuries, but the paperwork he signed shows he really settled an employment dispute, Transcript, at pp. 8-9. And the reason I can’t quote STJ Di’s exact language is again that the Genius Baristas have formatted the transcript so I can’t drag-and-drop. What are they afraid of?

Troy does get the Section 6662 chops dropped.

My platform WordPress.com just advised me that I had a reader today on this my blog from an “unknown region.”

Instantly my mind flashed back to Bernie Taupin’s and Sir Elton John’s 1972 classic, and I could imagine my reader reflecting on “all this science I don’t understand/It’s just my job five days a week/A rocket man.”

I don’t know Judge Emin (“Eminent”) Toro’s musical tastes, but he may be a fan of the late great Jim Morrison’s remake of the Willie Dixon classic. Back in January, he seemed to be reconsidering IRS’ determination of the seriously delinquent tax debt of Willard J. Belton and Martha-Alexandra Belton, Docket No. 22438-19P, filed 6/9/23.

See my blogpost “Section 7345 – Backdoor CDP?” 1/24/23.

Will J and M-A are back today, as IRS seems to have straightened out its TXMODA glitches, and manages to establish there was neither an IA nor an OIC pending for year at issue when IRS filed the NITL encompassing said year. Hence Section 6331(k) raises no barrier to the levies in question (State income tax levies and Federal payment levies, automatic grabs; see Order at pp. 4-5). So IRS’ certification passes muster (barely).

I’d quote Judge Eminent’s exegesis, but the order is posted in the format that doesn’t permit drag-and-drop. Why that should be I cannot tell; possibly a whim of the Genius Baristas.

But it does seem that there is a tiny but nevertheless available backdoor CDP review available via a Section 7345 passport grab.

That 1950s Cairol advertising slogan echoes once again, this time from The Great Australian Outback, in Michael W. Aubin & Kerry A. Aubin, Docket No. 1814-20, filed 6/8/23. Mike signed a Section 7121(b) closing agreement at the behest of his defense contractor employer, wherein Mike waived his right to take Section 911(a) Foreign Earned Income Exclusion on his income earned at a hush-hush US defense complex in Australia.

If this sounds vaguely familiar, you probably remember my blogpost “Unclosed?” 8/25/22, wherein Cory a/k/a Corey Smith dealt with a not dissimilar issue.

Judge James S (“Big Jim”) Halpern gets to deal with a conundrum that must delight him: did the delegate of the delegate of the Secretary who signed off on the closing agreement have authority to do so? Mike’s trusty attorneys say no, IRS says yes. But not even Judge Big Jim knows for sure.

Turns out the delegate of the delegate did have authority in Cory’s a/k/a Corey’s case in her own right, but in Mike’s she was the delegate of Mr. S., whose job title changed. IRS argues that the new function was “substantially similar” to the old (approved) function, but Judge Big Jim says not good enough.

“The relevant question is not whether the position Mr. S held (in an acting capacity)… was substantially similar to one or more prior positions whose occupants had the authority to sign closing agreements such as Mr. Aubin’s. Instead, the test is whether the position of Assistant Deputy Commissioner (International) is essentially the same as a prior position but with a new title.” Order, at p. 3. (Name omitted) (Emphasis by the Court).

And IRS left out a job description for the old and the new titles, so Judge Big Jim can’t tell. Neither did Mike’s trusty attorneys establish that Mr. S’s new title disqualified him from signing off.

“Although respondent has not argued that Mr. S ’s position description was sufficient, under IRM 1.11.4.3.(4) (Oct. 10, 2008), to provide him with authority to have signed Mr. Aubin’s closing agreement, petitioners sought to preempt such an argument in the Report they submitted after our… hearing. In that Report, they argued that ‘the position description . . . does not provide the Assistant Deputy Commissioner, International with authority [to sign Mr. Aubin’s closing agreement] because it does not describe the authority to execute the closing agreement with particularity.’ Petitioners do not explain, however, why the authority to ‘administer[] the operating provisions’ of the 1982 [Australian tax] Treaty would not encompass the signing of an agreement of a type that we have held to involve a ‘specific application[]’ of the treaty.” Order, at p. 5.

Both sides want summary J, neither of them gets it.

There’s much argy-bargy about whether Mike signed the closing agreement under duress, but as Mike had been ten (count ’em, ten) years on the Australian job, and as his employer told him to sign, that fails. Mike’s claim that his employer was agent for IRS likewise founders.

Mike’s trusty attorneys aren’t done. The claim IRS violated Section  6103, but all they did was sign off on the closing agreement they imposed on a class of employee, which doesn’t involve return info. And all Mike’s employer did was deliver the signed closing agreement to IRS, so they didn’t act as Mike’s agent without a Form 2848; to do that requires the Representative prepare and file with IRS, and the employer didn’t prepare.

Eric J. Geppert & Mary L. Geppert, Docket No. 946-20L, filed 6/7/23, started off their Tax Court careers represented by one and the same attorney, whom I’ll call Howdy. But six months into the program, IRS moves for summary J, indicating in the Declaration supporting same by SO who handled the CDP whence arose this petition that Howdy might be a fact witness. In consequence whereof, Howdy, seeing a conflict of interest, asks for time to respond, and gets it.

Within a month thereafter, two (count ’em, two) new attorneys sign aboard, but they purport to represent Eric only. Howdy never asks to be relieved as attorney for Mary, but shows up in the numerous filings made thereafter by the two relievers, all on behalf of Eric only.

If y’all are wondering why the headline first written at the head hereof is applicable, the two relievers ask Tax Court ‘to declare 26 U.S.C. §7443(f) unconstitutional and disqualify all the judges of the Tax Court until such time as §7443(f)’s constitutional infirmity is cured.’” Order, at p. 3.

Chaps, had you read this my blog, specifically my blogpost “Necessity Knows No Law,” 2/6/17, you’d know that was a nonstarter. And when you doubledown by asking for remand to Appeals and then filing a “Motion to Declare IRS Independent Office of Appeals Unconstitutional as Violating Separation of Powers & Set Aside IRS Independent Office of Appeals Actions,” Order, at p. 4, you know you’re in the running for a Taishoff “Oh, Please,” if not a Section 6673 frivolity chop.

Judge Alina I. (AIM”) Marshall, chronicling these antics, finally notes that IRS’ counsel, and the relievers (and maybe Howdy), filed a Joint Status Report stating “given that Mrs. Geppert has not had an attorney appear on her behalf, counsel for Mr. Geppert believes the Court must take her pro se status into account.’” Order, at p.4.

Well, is she pro se? Howdy never tried to sign out as her counsel, no one tried to sub in for her, and Judge AIM never let Howdy out. Besides, Judge AIM hasn’t heard from Mary.

So Judge AIM hands Mary a laundry list of these goings-on, and asks her to respond.

I’ll give Mary a wee hint: Mary, find an attorney who knows what s/he is doing.

Carrie L. Anderson, Docket No. 12122-21L, filed 6/6/23, has a sad tale. ” Petitioner has had to fight for her Rights all of her life. Now, at the age of 69, she is tired! Petitioner admits that she used poor judgment in trusting someone she though [sic] she really knew; however, this was not willfully done on the part of thePetitioner.” Order, at p. 4.

Carrie is fighting a NOD affirming a NITL for a Section 6702 frivolity chop, arising out of a scheme devised by Carrie’s friend and preparer. This is a good one. I’ll let Judge Morrison man-‘splain.

“Anderson filed a tax return … falsely claiming that her credit union had withheld $58,542 of federal income tax from her income as part of a fictitious transaction in which the credit union, in order to meet its ‘daily depository quota with the Federal Reserve,” had exchanged her demand deposit for ac security interest in an unnamed asset of the credit union and then transferred to her a full ownership interest in the unnamed asset. The return stated that Anderson had conducted an ‘extensive study of Title 26 of the Code of Federal Regulations,’ but that she not was not a ‘tax code expert.’ She said: ‘If you [i.e., the IRS] can find a mistacke [sic] or error, please notify me within 30 days that I may take corrective action. Otherwise, thank you for processing my return promptly.’” Order, at p. 1.

Carrie actually got a $59K refund. But by the time IRS woke up, at some point Carrie was put into CNC status. Transcript, at p. 4. Carrie claims she only realized this was a fraud when she got the Letter 3176 telling her to file a correct return or get a Section 6702 chop. Ibid.

At her CDP, Carrie admitted that she had misgivings about her return. “…in her ‘gut’ she knew the return was probably wrong. And she admitted that her judgment was impaired by her need for money to buy a new car.” Transcript, at p. 3. Cf. the title of this blogpost, and the late great Janis’ 1970 hit.

Carrie cites the Taxpayer Bill of Rights, but, as usual, that’s a nonstarter. And “gude faith, ye maun’ fa’ that,” as an even greater poet than Janis never said.

“Anderson’s asserted good-faith belief that the position was correct does not serve as a defense to the §6702(a) penalty. The penalty provision has no ‘reasonable cause’ exception. The only exception is found in § 6702(d), which allows the Treasury Department to reduce the amount of the penalty if it determines that the reduction would ‘promote compliance with and administrative of Federal tax laws.’ For a person to be considered for a § 6702(d) reduction, the Treasury Department has determined that the person must submit Form 14402. Rev. Proc. 2012-43, § 4.01(1).  Anderson did not submit a Form 14402. Even had she done so, she would not have met the other requirements for penalty reduction under § 6702(d), which are found
in Revenue Procedure 2012-43.” Order, at p. 5.

Carrie’s preparer was Catharine Harvey (Order, at p. 2). I wonder how much of that $59K refund Catharine got for this. There is no Taishoff award for what she did here, but I hope the US Attorney for the relevant District can figure out an appropriate one.

My colleague Peter Reilly, CPA, has exhaustively examined the anfractuosities and interstices of Reg. Section 1.183-2(b), the hobby loss provision that the late Judge Richard Posner of 7 Cir characterized as “the goofy regulation.”

Today STJ Eunkyong (“N’Yawk”) Choi applies such of the nine (count ’em, nine) factors that the goofy regulation enumerates as are necessary to deny professional gambler status to Susan E. Mercier & James H.  Mercier, Docket No. 7499-22S, filed 6/6/23. And she doesn’t need more than a couple.

Sue is an accountant for a charter school, and Jim runs his own business repairing appliances. Living in or around Las Vegas, they gamble at video poker with a system they worked out their own selves. This offers the best odds and involves skill.

Of course, they lose. In more ways than one.

Their W-2G winnings are unreported income. And their net losses cannot be deducted on Sched A, because their AGI with winnings included wipe out Sched A in favor of the post-TCJA enhanced standard deduction. So they don’t report the W-2Gs, claiming it’s unfair to be taxed on winnings that aren’t.

STJ Choi says that may be, but that’s the law.

Unless.

There’s always an exception. Whatever would we practitioners do without exceptions?

Sue & Jim can claim professional gambler status. If they qualify, they can file Sched C, deduct losses against winnings like any other self-employed businessperson, and carry the net loss over to their 1040 MFJ.

Except.

“We find that although Petitioners are serious about gambling, they were not professional gamblers. Petitioners are both sophisticated in that they are an accountant and a previous business owner. Petitioner wife acknowledged that as an accountant, she would advise a taxpayer operating a business to keep records. Petitioner husband acknowledged that for his appliance repair business, he did keep records.

“Petitioners did not personally keep track of their gambling activity in [year at issue] choosing, instead, to rely on third-party information from casinos, even though they further acknowledge that the casinos record may be incomplete, as only jackpot winnings, not smaller winnings, are reported. Petitioners also did not keep a separate bank account to manage gambling winnings and expenses, but used their personal account, which is further evidence of the casual nature of their gambling.” Transcript, at pp. 9-10.

And in prior years, pre-TCJA, Sue & Jim did take losses on Sched A. Though Sue & Jim claim they didn’t know they could go pro and file Sched C for gambling, Jim filed Sched C for appliance repair. And they didn’t claim Sched C pro gambling until after the SNOD.

Takeaway- Open a separate bank account for whatever business you claim, even if you no longer get a toaster for opening the account. Even the monthly service charges (if any) are deductible. Put in every penny of income. And get some cheap online recordkeeping software. The deduction you save may be your own.

Josefa Castillo, 160 T. C. 15, filed 6/5/23, got her filing fee waived when she petitioned her CDP NOD. But she petitioned after the 30-day Section 6330(d)(1) cutoff, so then-Ch J Maurice B (“Mighty Mo”) Foley bounced her petition for being 249 (count ’em, 249) days late.

But that was back in March, 2020, pre-Boechler.

Josefa’s trusty attorney, the redoubtable Elizabeth (“Prof. Liz”) Maresca, CO of the Fordham University Law School LITC, nowise daunted, appeals to 2 Cir, which puts everything on hold as by that time Boechler was climbing its way to the Supremes.

You know the rest. The Supremes bring “discipline and order” to Congress’ wayward view of jurisdictional and nonjurisdictional defects. Whereupon 2 Cir reverses and remands Josefa back to Tax Court. IRS folds everything, the year at issue being nine (count ’em, nine) years ago.

So after a wee high-five on 65th Street, Prof. Liz goes for Section 7430 admins and legals. I don’t know much was at stake in Josefa’s case, but if she qualified for Fordham’s LITC, I doubt they had to round to the nearest dollar, much less omit the last three zeroes. But the Fordham LITC’s meter stopped at $5,601 admin and $129,750 for legal.

Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan sees off Prof. Liz and her hungry acolytes. Prof. Liz and her crew did behave well. “She did not unreasonably protract the proceedings, the amount of the costs requested is reasonable, and she exhausted the administrative remedies available. The parties disagree as to whether petitioner should be treated as the prevailing party.” 160 T. C. 15, at p. 4.

As for the reasonableness of the legals, without knowing the issues, the amount in controversy, the novelty of legal issues, the time expended (and how and by whom it was expended) and the expertise of the attorneys involved, I can’t comment. But the fact that IRS folded makes me wonder just how big and tough a case it was.

Howbeit, substantial justification is still at issue. At the time the answer was filed, was IRS justified in its position?

“Respondent’s litigation position—which was first raised in the Answer—was that the Court lacked jurisdiction because the Petition was not timely filed. There is no dispute that the Petition was filed late.  Respondent argues that because the law was clear then that a timely filing was necessary to establish the Court’s jurisdiction, the Commissioner was substantially justified in asserting that the Court lacked jurisdiction. We agree with respondent.” 160 T. C.15, at p. 5.

“Before the Supreme Court’s decision in Boechler neither the Tax Court nor the federal courts of appeals had held the 30-day period in section 6330(d)(1) to be nonjurisdictional. Because Boechler was a matter of first impression for the Supreme Court, respondent’s position was substantially justified.” 160 T. C.15, at p. 6.

But Prof. Liz isn’t done. “Petitioner argues that respondent’s position should be presumed not to be substantially justified because respondent did not follow guidance provided in the Internal Revenue Manual(IRM). See § 7430(c)(4)(B)(ii). The presumption in section 7430(c)(4)(B)(ii) does not arise here because the IRM is not ‘applicable published guidance’ within the meaning of the statute. Section 7430(c)(4)(B)(iv) defines “applicable published guidance’ exhaustively as ‘regulations, revenue rulings, revenue procedures, information releases, notices, and announcements, and . . . any of the following which are issued to the taxpayer: private letter rulings, technical advice memoranda, and determination letters.” Since the IRM is not included in this list, the presumption does not arise.” 160 T. C. 15, at p. 6.

Another silt-stir bites the dust.