Readers of this my blog know I can be opinionated, even hardheaded; I confess it, and don’t deny it. In discussing James E. Keith and Julie Keith, T. C. Memo. 2024-81, filed 8/28/24, I’m going to back off a bit, reserving my rights to get opinionated.

Jim & Julie were represented in working out a tiered-IA with Appeals, but got behind with some paperwork, when their representative left the firm with which she’d been affiliated. Jim & Julie then elected to go self-represented. The SO then quadrupled the proposed IA, and untiered it to a straight payout, claiming increased RCP.

Jim & Julie then engaged a new representative, who corrected a miscalculation by the SO, and asked for time to provide more evidence. Two (count ’em, two) weeks after expiry of the extension, the SO issued a NOD sustaining NITL.

Judge Cary Douglas Pugh grants Jim’s & Julie’s trusty attorney’s (who presumably is their new representative) motion to remand.

“The administrative record shows shortcomings on both sides. Petitioners should have provided the requested documents. SO H (and Collections) should have reviewed the documents petitioners provided more carefully. Petitioners have identified enough evidence in the administrative record to cause us to question whether the calculation of their ability to pay was flawed. We therefore will remand this case for Appeals to reconsider petitioners’ ability to pay, and to afford petitioners a final opportunity to submit a legible 2021 tax return (as well as any other documents relevant to their assertions regarding their personal and financial circumstances).” T. C. Memo. 2024-81, at p. 5. (Name omitted).

Though trusty attorney claims he raised underlying liability at Appeals, Judge Pugh finds nothing in the administrative record, and nothing in the motion to remand or filings in support thereof, to show either he or predecessor raised it.

It’s always a tough call for a petitioner whether to engage a representative for Appeals. In many cases, the choice is made for the petitioner: they haven’t got the money, and may be over the income limits for the LITCs. In other cases, it hurts to pay money to find out you owe less money, but still owe money. Here, the petitioner may owe the same amount of money, but get more time to pay it. 

And of course, the usual Taishoff takeaway, from my late and lamented law partner Sid: Protect your record! At the hearing, say it loud, say it proud. And don’t be quick to stip in the admin record. If you said something or filed something, make sure it’s there. If it isn’t, move to enlarge. As with the petitioner, so shall it be with the representative: don’t walk alone. The record, if you do it right, is your best friend.