This Golden Oldie is most often used to bar petitioners from injecting IRS’ Exam miscues and delictions into a deficiency de novo trial. The past isn’t even prologue.

So while Curtis K. Kadau & Lori A. Kadau, Docket No. 286-21, filed 3/4/24, may have told Exam a different story (in writing) than they told on the stand at trial, IRS can’t avoid being run over by Greenberg’s Express, 62 T. C. 324 (1974), when they try to introduce documents Curtis & Lori gave Exam and Appeals.

Judge Christian N. (“Speedy”) Weiler tells it.

“The government often argues that materials relating to a taxpayer’s audit or administrative proceedings are irrelevant because the issues before this Court are de novo. See Greenberg Express, 62 T.C. 327; see also Moya v. Commissioner, 152 T.C. 182 (2019). This argument is predicated on Section 6214(a), through which, upon a timely filed petition, we have jurisdiction to redetermine the correct amount of the deficiency.

“In Greenberg’s Express, 62 T.C. at 328, we explained that, because a trial before the Court is a proceeding de novo, the Court’s ‘determination as to a petitioner’s tax liability must be based on the merits of the case and not any previous record developed at the administrative level.’ The principle articulated in Greenberg’s Express – that the Court will not generally look behind a notice of deficiency – has been repeatedly upheld by appellate courts.” Order, at p. 2. (Copious citation of precedent omitted).

Taishoff says that Moya is a weak reed to support Greenberg’s Express. See my blogpost “The Taxpayer Bill of Goods,” 4/17/19. I said then “this case was hardly well-litigated, and I’m sorry we didn’t get a better fact pattern and record in a precedent-setting case.” We had a pro se and a muddled argument from IRS; Judge James S. (“Big Jim”) Halpern deserved better, and so do we.

“While in this case it is respondent who seeks to offer and introduce documents petitioners furnished in audit, we find the documents to be immaterial as they were not introduced by petitioner, nor were they offered as impeachment evidence by respondent during cross-examination.

“We conclude that our holding in Greenberg Express applies here and precludes the introduction of these three administrative documents. Our redetermination of petitioners’ tax liability will be based on the merits of the case and the record, as developed at trial.” Order, at p. 2.

Amazing! Eight (count ’em, eight) attorneys from IRS, and no one picked up on prior inconsistent statements to impeach.  See FRE §613.