I said long ago that a lawyer’s list of favorite indoor sports must include second-guessing someone else’s trial strategy. Of course, it’s both cheap, easy, and, like counting everybody else’s money (another favorite), leaves no aftertaste.

That said, I can’t help but think that STJ Diana L. (“Sidewalks of New York”) Leyden is thinking as I’m thinking: why didn’t counsel for Kristine K. Fringer, Docket No. 6856-23L, filed 4/15/24, raise innocent spousery? It’s not that counsel didn’t know about Section 6015.

“Petitioner and [divorced spouse] did not check the box for innocent spouse relief nor did petitioner submit Form 8857, Request for Innocent Spouse Relief, with the Form 12153. At the hearing on respondent’s motion [for summary J], petitioner’s counsel conceded that petitioner did not and would not file a request for innocent spouse relief.” Transcript, at p. 6.

Note that the NFTL at issue results from three (count ’em, three) years’ worth of MFJ self-reporteds and unpaids. Counsel says “(D)ivorce decree mandates that [divorced spouse] is responsible and holds his ex-wife Krinstine (sic) K. Fringer harmless from any and all taxes with regard to filed returns when they were married. [Divorced spouse] has totally turned his business and personal life to the positive, is finally current with his tax filings, and is in the process of filing an offer-in-compromise to settle his outstanding tax liabilities.” Transcript, at p. 6.

Of course, IRS says divorced spouse isn’t current, and the divorce decree is irrelevant as against IRS.

Kristine loses.

Turns out counsel represented both divorced spouse and Kristine, at least when the 12153 was filed requesting the CDP. STJ Di doesn’t stress this, but one has to wonder.

I’ll wager someone is getting The Phone Call.