Judge Joseph Nega has taken the conn from Judge John Colvin, and Appeals has negotiated the narrow channel Judge Colvin dredged back in 2019 (for which see my blogpost “John Is His Co-Pilot,” 11/18/19), so here endeth the story of Leciel L. Lowery, Jr. & Charlene A. Lowery 13022-17L, filed 8/17/23.

Leciel, y’all will recollect, was the wore out Chesapeake Bay pilot, about to retire but with north of $600K in unpaid taxes, add-ons and chops. Judge Colvin discovered Appeals had been less than thorough with Leciel’s numbers, and remanded with a chart.

Appeals avoided the shoals of Charlene’s AZ trust, the equity in Leciel’s & Charlene’s homestead, and Leciel’s retirement account. Plus they credited the automatic deductions from Leciel’s pay. See Order, at p. 5.

So the joust is about home repairs (not enough proof that same necessary for health or production of income) and upward adjustment of the local living expense allowances per IRM (again, not proven), and Leciel’s decreased pandemic earnings (his ships didn’t come in during COVID).

But the decrease doesn’t matter.

“…we note that petitioners’ reported monthly income was already based on an average of their prior six years of annual income, extrapolated out to a monthly basis. That averaging, which resulted in a monthly amount of $37,307.32, thus already represented a substantial reduction from petitioners’ actual monthly income in 2019 and the first two months of 2020. Having already afforded petitioners considerable leeway in allowing an average monthly income amount lower than their actual income, we conclude that AO C was within her discretion not to allow a further reduction based only on the much smaller and (potentially nonrepresentative) sample size of March and April 2020. See IRM 5.15.1.15 (Oct. 2, 2012) (‘The income and expense information provided must reflect a sufficient time frame to accurately determine the monthly average that could be expected for the entire year . . . extraordinary events that can lead to excessive increases or decreases in income or expenses at a particular time [must be considered].’).” Order, at p. 7. (Name and footnote omitted).

Anyway, whatever the number, Leciel offered less, so harmless error (did not affect outcome).