I’d suggested years ago that Judge David Gustafson’s obliging ways might have been contagious, but now I’m sure of it. Judge Mark V. (“Vittorio Emanuele”) Holmes will win your case for you even when you haven’t a clue how to do it.

Check out Joseph Safdieh, Docket No. 11680-20L, filed 12/5/24. Joe is caught in the toils of Section 6038 offshoring chops. He petitions the NOD affirming the NFTL, IRS moves for summary J, but the jumpball between 2 Cir Farhy and 8 Cir Mukhi gets in the way. See my blogpost “È Pur Nonassessable,” 11/18/24*, for the backstory.

Joe is another deer-in-the-headlights pro se litigator. “… we infer from the fact that his filings are mostly handwritten that he is not the most sophisticated of litigants in Tax Court. In his response to the IRS’s summary-judgment motion in his case, he did not include his own motion for summary judgment, and he did not raise the argument that ultimately prevailed in Farhy and Mukhi.” Order, at p. 2.

Judge, I bet he doesn’t read my blog, either.

But Judge Holmes gives Joe summary J, notwithstanding Joe’s shortfalls and shortcomings, and in the face of 2 Cir wrath, as Joe is a NY resident.

“We have nevertheless held that we can grant summary judgment against the Commissioner even when he is the only party moving for summary judgment. See Rogers v. Commissioner, 157 T.C. 20, 49 (2021) (Court, in rejecting respondent’s lone summary judgment motion, held that respondent abused his discretion). We have also held that it is the obligation of the appeals officer conducting a CDP hearing to verify ‘that the requirements of any applicable law or administrative procedure have been met.’ I.R.C. §§ 6320(c), 6330(c)(1). See Freije v. Commissioner, 125 T.C. 14, 32–37 (2005) (finding an appeals officer’s verification was insufficient due to an error of law). In this case, verification is a legal impossibility now that we’ve twice held that the Code does not permit the assessment of section 6038 penalties. And because the Commissioner lacks the power to assess these penalties in the first place, Mr. Safdieh’s notice of determination cannot survive.” Order, at p. 2. (Emphasis by the Court).

Judge Holmes gives IRS a chance to distinguish Joe from Farhy and Mukhi, but no dice.

Certain IRS, breathing out threatenings and slaughter, will run to 2 Cir, Judge Holmes begs 2 Cir thus:  “The undersigned respectfully suggests, if this decision is appealed to the Second Circuit, that Court consider appointing pro bono counsel to represent Mr. Safdieh.” Order, at p. 3.

* https://taishofflaw.com/2024/11/18/e-pur-nonassessable/