I confess it, and deny it not: I am a fan of the late Jimmy B. He was a “brash embodiment of the street-smart New Yorker,” my kind of guy. Especially his 1997 memoir I Want to Thank My Brain for Remembering Me struck home, when four (count ’em, four) years later I woke up in the recovery room at Duke University Medical Center drafting aloud a petition in a holdover proceeding, which caused the medics to summon my wife, as they thought I had gone mad. No, just grateful beyond words that I was able to continue to practice law, which I admit is easy to conflate with insanity.

But now it’s another work of Jimmy B.’s, The Gang Who Couldn’t Shoot Straight, 1969 vintage. And the sequel is written by Judge Mark V. (“Vittorio Emanuele”) Holmes in Crystal Anne Nelson & Joseph Nelson, Docket No. Docket No. 5223-19L, filed 1/6/24.

Crys & Joe were down $2 million in tax for years at issue, which they didn’t contest, but wanted an OIC of $1750 payable in  installments. So they riposted the NFTL with Letter 12153, whereupon IRS earned the title first set forth above at the head hereof, as my two-Grey-Goose-Gibson-lunching colleagues would say.

“The IRS botched the hearing, however, by sending some important correspondence—including the notice scheduling the CDP hearing—to the wrong address. When the Nelsons didn’t show up at the hearing, the Commissioner sent them a ‘last chance letter”—also to the wrong address.” Order, at p. 2 (unnumbered).

The NOD did get to them, properly addressed, which they petitioned, after which they received the rejection of their OIC. As trial approached, remand was the obvious course. Then SO F (name omitted) got into the act. As can be seen from the following, SO F did not exactly cover himself with glory.

“At this point his manager intervened. She noted in the case activity report that:

‘Although SO informed the POA [i.e., power of attorney—the Nelsons were represented by their accountant, BS, during the CDP hearing] of the missing documents, SO F did not explain why he needed these documents (which are presumably for a collection alternative) . . . did not specify what months of bank statements are needed . . . did not specify which estimated tax payments are needed … did not provide a deadline for the filing of the [most recent year] Form 1040 tax return . . . did not provide a deadline for the other documents . . . did not explain what would happen if the requested documents were not submitted by the deadline.’

“The manager also noted that she did not consider the SO’s vague recollection of requiring the Nelsons to produce these documents on the same day he asked for them to be ‘a reasonable opportunity to submit documents.'” Order, at p. 3. (unnumbered).

But when SO F, duly chastened, requested the information in proper form, trusty accountant BS told SO F that client refused and that SO F could file a supplemental NOD rejecting everything. Obviously, BS is too well-bred to repeat what I daresay was his clients’ actual response.

Judge Holmes is constrained by the record rule in this 9 Cir Golsenized case, and sustains the supplemental NOD.

“This case has had many odd twists, but in the end the Commissioner is right that the deliberate refusal of a taxpayer to comply with reasonable demands for documents and proof of compliance with filing obligations for later years means there was no abuse of discretion in denying the Nelsons an offer in compromise and issuing the supplemental notice of determination.” Order, at p. 7 (unnumbered).

I want to thank Judge Holmes for issuing the order in drag-and-drop format even though the pages are unnumbered. Much better than trying to retype or paraphrase.