My readers with ultra-sharp memories may remember Indu Rawat, Docket No. 15340-16, filed 7/28/22. If you, dear reader, are not one such, check out my blogposts “Che Se Firma È Perduto – Part Deux,” 7/20/21, and “That’s the Word!” 8/26/21.

Well today, after argy-bargy in extenso, Judge David Gustafson tosses his order from last July, gives Indu summary J on the non-Inventory stuff, but denies as to Indu’s claim that she was a NRA in year at issue; that’s Non-Resident Alien, not a pistol-packin’ Momma. The issue, of course, is that if Indu was a NRA in year at issue, she owes no tax on the disposition of the inventory after she sold her partnership interest. Again, the 2017 amendment to Section 864(c)(8) doesn’t apply.

First, the Form 870-LT Indu and IRS signed is a Section 7122 settlement, but only binds the parties to what they explicitly agreed, not collateral issues. Second, the many and varied status reports the parties filed, wherein Indu’s NRA status was repeatedly mentioned, isn’t a concession by IRS. Indu said she was a NRA in her petition, which IRS denied in its answer.

“However, instead of putting forth evidence to support her assertion, petitioner asks us to draw inferences from statements of the parties in joint status reports— statements that merely clarify the issues set forth in the petition. The petition asserted that Ms. Rawat was a nonresident alien, and the Commissioner’s answer expressly denied that assertion. When he thereafter joined in status reports—stating ‘The petition filed in this case presents two primary issues for resolution, (1) whether petitioner, as a nonresident alien, is subject to tax on that portion of the gain on the sale of her interest in a U.S. partnership that is attributable to inventory” (Doc. 18 at 2) (emphasis added)—we think he did not admit that she was a nonresident alien but rather joined in stating a disputed issue in the case of which her status was a component. It is not impossible that someone joining such a statement would intend thereby to signal his concession of nonresident alien status, previously disputed, but the Commissioner insists (Doc. 41 at 11) that he did not so intend. In resolving petitioner’s motion, we draw all inferences in the Commissioner’s favor, and we therefore decline to infer that his joining this status report constituted a concession of Ms. Rawat’s alleged nonresident alien status.” Order, at p. 7.

And Indu didn’t submit her own declaration.

So before tossing the three bucks at the Glasshouse Copycats in the hopes of eliciting hot stuff in status reports, be advised that there may be less than meets the eye.

I’ll reserve commentary on the policy and political considerations that underlay the 2017 Tax Cuts and Jobs Act; at least, I’ll not comment here, preserving my “firm, impassioned stress” that this remain a nonpolitical blog.

But today’s off-the-bencher by STJ Peter (“HB”) Panuthos, Joseph C. Malek & Melinda J . Malek v . Commissioner, Docket No . 9082-21S, filed 7/27/22, does let me make a nonpolitical comment: while eliminating the unreimbursed employee business expenses deduction may have worked a hardship on some taxpayers, it eased the burden on Tax Court Judges and STJs, who no longer have to listen to petitioners fail to provide any basis wherewith to Cohanize even a few bucks’ deduction.

It’s indeed an ill wind that blows no one good.

It’s been six (count ’em, six) years since I broke the rule I learned so long ago: “If it moves, salute it; if it doesn’t, paint it; and never volunteer.” See my blogpost “I Volunteer,” 4/6/16. But I feel moved to try again.

CSTJ Lewis (“That Spelling Needs No Correction”) Carluzzo gives appropriately short shrift to Andrea J. Darnell, Docket No. 16752-21S, filed 7/26/22, an off-the-bencher. Andrea’s been here before; see my blogpost “Frivol, But Admit the Truth,” 11/13/20.

And Andrea pulls the same move: files late, claims no income when she had income, admits she got the money but claims it isn’t taxable. IRS wants a Section 6673 chop (this is Andrea’s third trip to Tax Court), but IRS’ fold on a chop at the trial looks like a typo to me.

“Respondent now concedes the section 6663(a) penalty.” Transcript, at p. 4.

Where’s the fraud? Fraudulent nonfiling (Section 6651(f)) wasn’t mentioned, and Andrea was only ten (count ’em, ten) days late with her return.

Or maybe IRS folded the Section 6662(a) accuracy chop.

“Petitioner’s position in this proceeding is most certainly frivolous, and this is not the first case that she initiated in this Court in which she advanced a frivolous position. Nevertheless, respondent’s concession of the section 6662(a) penalty constrains us to deny so much of respondent’s motion that requests the imposition of a section 6673 penalty. After all, petitioner’s … Federal income liability would have been greater if she had not initiated this proceeding.” Transcript, at pp. 6-7.

In either case, somebody needs to proofread these transcripts. I volunteer, again. For free, again.

And IRS needs to reconsider its trial folds. I can help there, too.

Gray Mare Farms, LLC, Joel Presley, Tax Matters Partner, Docket No. 6682-20, filed 7/25/22, is yet another of IRS’ attempt to run the Reg. Section 1.170A-14(g)(6) Hewitt rapids with the Judge Guy (not the retired STJ, the 6 Cir concurrer) Section 170(h)(5)(A) summary J countergambit.

Judge Mary Ann (“S. E. C. = She Eschews Cognomens”) Cohen isn’t buying.

“Respondent relies in part on language in the easement that petitioner admits is ‘perhaps inartful’. If the language is ambiguous, it may be necessary to determine the intent of the parties to the deed of easement. Summary judgment on the issue of intent, when it becomes a material fact, is inappropriate.” Order, at p. 1.

It seems I must again try my readers’ patience with the time-worn observation that any lawyer who can’t find an ambiguity should find another way to make a living.

Nothing like “highly contestable readings of what it means to be perpetual,” eh, Judge Holmes?

But wait, there’s more! As the late-night telehucksters say.

“The parties are proceeding with valuation of the property and may be able to resolve this case or narrow the issues for trial. Thus, summary judgment on the disputed issue of law is premature and unproductive.” Order, at pp. 1-2.

So Judge S. E. C. Cohen declines the old Gray Mare’s invitation to come over to the side of 11 Cir and embrace Hewitt. Seems the Gray Mare’s boondocks lie on the downside of the Mason-Dixon Line, in 4 Cir.

Looks like more short-Circuitry coming up.

I see where Chief Whistler John (“Hoppin’ John”) Hinman is thrilled to bits as he caps off thirty-nine (count ’em, thirty-nine) years at IRS by taking the Captain’s chair at the Ogden Sunset Palace.

But Hoppin’ John’s paean to his new command rings wee bit hollow to this somewhat jaded observer. “My office ensures that award claims are reviewed by the appropriate IRS business unit, determines whether an award should be paid and the percentage of any award, and ensures that approved awards are paid.” Ibid., as my expensive colleagues say.

Ya wanna bet a few pence on that one, boss? I got ya covered.

Looks like Hoppin’ John never read Mandy Mobley Li, No. 20-1245, 1/11/22. As far as DC Cir is concerned, Hoppin’ John’s hopping crew need do nothing for nothing, and no court can review their nonfeasance.

Let’s see just how zealously Hoppin’ John’s hopping crew actually reviews claims and moves them to collection and award.

Back on 2/7/20, I said Tax Court had no Office For the Self-Represented, and wasn’t likely to have one. Well, I wasn’t exactly right. Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan assumes that role today for Brenda Martinez, Docket No. 34587-21, filed 7/22/22.

“…petitioner filed with the Court a copy of a notice of deficiency regarding a deficiency in her 2019 federal income taxes and attached copies of tax forms for the same year. The Court characterized the filing of these documents as a Petition. Petitioner did not file either Form 4, Taxpayer Identification Number,  or Form 5, Request for Place of Trial. Petitioner did not pay any filing fee nor did she file an Application for Waiver of Filing Fee.” Order, at p. 1.

Not surprising; the old statistic was 70% of petitioners were self-represented, and of those the vast majority were first-timers in Tax Court. And the greatest part of those crashed before they ever got to the calendar call commandos.

So IRS moves to toss for failure to state a claim.

Ch J TBS to the rescue. She holds the motion in abeyance.

“To help petitioner in this process the Court is providing petitioner with the following attached forms which petitioner should complete and file with the Court as ordered below: (1) Amended Petition, to which petitioner should attach the notice of deficiency she received from the IRS for the year or years in dispute; (2) Form 4, Statement of Taxpayer Identification Number; and (3) Request for Place of Trial. Further, petitioner must pay the filing fee or file an Application for Waiver of Filing Fee, a copy of which is also attached to this order.” Order, at p. 1.

Far be it from me to cast any shade on this laudable attempt to rescue an out-of-depth petitioner. How well Ms Martinez can cope with these papers remains to be seen. Perhaps a suggestion she contact a LITC might be seasonable.

Better still, Tax Court, of all courts, needs an Office For the Self-Represented. It gets more of them than any other Federal Court, I daresay, and the Ch J has enough to do without adding that function to her many burdens.

John Keats fans will remember the headline of this blogpost, but I’ll have to circle round to get him into the traffic pattern here.

My colleague Peter Reilly, CPA, asked me a couple days ago (hi, Judge Holmes) if I meant to report on Aegis For Dreams, Docket No. 29876-21X, filed 7/19/21. My reply was, I fear, a trifle brusque, but Mr Reilly, always a gentleman, took no offense. I replied “No. There was never a dispositive order, much less an opinion. The 7/19/22 Stip just says IRS and Aegis for Dreams agreed that Aegis for Dreams is a 501(c)(3). No facts, no background, no story.” Mr Reilly said he would follow, as Section 501 is always under-the-radar.

In fact, reviewing the stipulated settlement leads me to some interesting speculation, in return for a trifling investment of fact.

Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan finds fault with the caption of the stipulated decision proffered by the parties, recharacterizes it as a stip of settlement, and enters the agreed result accordingly. Might not Ch J TBS be saying “Guys, it’s your deal. I’m not reviewing it, commenting on it, or blessing it. Have a nice day.”?

I suppose the indefatigable Mr. Paul Streckfus, much traveled in the realms of non-gold that comprise not-for-profit entities, is again perturbed that the backstory for this deal remains hidden. Did IRS’ counsel give away the ranch? Were the Dreamers injured innocents mired in the swamp of the TE/GE? Or had TE/GE nailed the villains, who went free because the constable blundered?

All valid questions.

I wish I could offer Messrs. Reilly and Streckfus better consolation. Again, I fear I have bad news. Neither OCC nor any trusty attorney for any 501(c)(3) claimant is going to give away their negotiating strategy or their battle plans. Unlike Keats’ pearl fisher, they will not “go naked to the hungry shark.” I am sure the petition is artfully drafted to assign the barest minimum of error, and state the barest minimum of fact, to get to court. And the rest is silence, until the real deal emerges, shrouded in the mist from which it came.

In the immortal words of The Man From Mumbai, “As it was in the beginning, Is today official sinning, and shall be forevermore.”

No, Judge Ronald L (“Ingenuity”) Buch is not relitigating this contentious matter. He’s just using the opinion as an example of a ” challenged action… so short in duration that it cannot be fully litigated.” Order, at p. 6. And a Section 7345 passport grab is not one such, as the grab can go on indefinitely or at least until the delinquent tax, chops, add-ons and interest have been paid.

Katherine McDonald, Docket No. 21077-21P, filed 7/21/22, claims the grab of her passport is unconstitutional, but since IRS folds the grab, that’s moot.

This is a rerun of Ruesch, for which see my blogpost “Ruesch to Judgment,” 6/25/20. IRS pulled Kath’s IA wrongfully, the phone, fax, and mail address for appeals were all wrong or nonworking, and a simple “oops” became a maelstrom of mistakes. No wonder Kath was peeved. Her trusty attorneys got IRS to fold, but no one likes to pay money to straighten out someone else’s mistakes. Hence the constitutionality fracas.

Judge Ingenuity Buch says if IRS tries it again, it’s new facts and can be litigated afresh. And Kath’s tax nodules were blocked; I’m not sure what those are, but Judge Ingenuity Buch thinks it works to prevent a subsequent grab on these facts. See Order at p. 5, footnote 5.

So the grab is out, and Kath is out. But read the facts here: would you go for admins and legals?

Even though his trusty attorneys posit that fact, it does not avail Donald W. Thompson, T. C. Memo. 2022-80, filed 7/20/22. Don (hereinafter “Golfer Don,” for reasons appearing infra, as my expensive colleagues say) claims that the 40% overvaluation chop bestowed on him is invalid because neither the RA who prepared the CPAP nor his supervisor were qualified realty appraisers. Golfer Don wants cross-examination as to their expertise.

Judge Albert G (“Scholar Al”) Lauber isn’t buying.

“Petitioner misapprehends the requirements of section 6751(b). That provision is captioned ‘Approval of Assessment,’ not “Explanation of Assessment.” See Pickens Decorative Stone, LLC v. Commissioner,  T.C. Memo. 2022-22, at *7. As we have said before: “The written supervisory approval requirement . . . requires just that: written supervisory approval.” Ibid. (quoting Raifman, 116 T.C.M. (CCH) at 28).

“We have repeatedly rejected any suggestion that a penalty approval form or other document must ‘demonstrate the depth or comprehensiveness of the supervisor’s review.’ Belair Woods, 154 T.C. at 17. Indeed, because petitioner’s claimed deductions presupposed that the Property had appreciated by 890% in just over a year, the IRS did not need a formal appraisal to support its determination that a valuation misstatement likely existed. In any event we have held that a supervising attorney’s signature on an answer, without more, is sufficient to satisfy the statutory requirements for penalties first asserted in the answer. See Roth v. Commissioner, T.C. Memo. 2017-248, 114 T.C.M. (CCH) 649, 652 (finding an associate area counsel’s signature on an answer sufficient), aff’d, 922 F.3d 1126 (10th Cir. 2019).” T. C. Memo. 2022-80, at p. 9. (Footnote omitted, but it says Golfer Don’s discovery is irrelevant because it wouldn’t change the outcome.) I’ve blogged all these cases, of course.

My ultra-hip readers have already sussed out this is more marked-up boondockery. Don paid a-million-two, and sixteen (count ’em, sixteen) months later gave a conservation easement to the striving, thriving City of North Augusta, SC, just over the river from the Home of the Masters (and Fort Gordon, home of the Signal School, the MP School, and one-time duty station of your reporter).

Golfer Don valued the easement at ten-million-nine-plus; he threw in the dilithium crystals, but left out the golf course, concession stands, rest stations, and other usual golf course amenities. And he could hold tournaments there.

Of course, easements out at extinguishment. IRS trashes the deduction, trusty attorneys play the Hewitt gambit, and Scholar Al, Golsenized to 11 Cir, denies IRS summary J on the deduction, without prejudice to renewal should things change, but gives it to them on the Boss Hossery.

“Without prejudice to renewal” is Judgespeak for “if IRS goes to the Supremes on the Hewitt-Oakbrook Circuit split and wins.”

Cedar Land, LLC, Big Escambia Ventures, LLC, Tax Matters Partner, Docket No. 7284-19, filed 7/19/22, wants to be delisted. That’s not the A-List at the latest high-priced club; that’s the listed-transactions bad-boy list per Notice 2017-10. And of course they’re playing the Hewitt, ya-dint-follow-the-APA, gambit.

Judge Albert G (“Scholar Al”) Lauber has the stagesetting.

“…petitioner contends that Notice 2017-10 is invalid because it was improperly promulgated under the Administrative Procedure Act (APA). Specifically, petitioner contends that the designation of transactions as ‘listed transactions’ constitutes an agency ‘rule’ that must be promulgated pursuant to notice-and-comment rulemaking. The IRS concedes that Notice 2017-10 is a ‘rule’ for APA purposes but contends that this rule was exempt from notice-and-comment procedures. Petitioner seeks partial summary judgment on this question.” Order, at p. 2.

Needless to say, we have more syndicated marked-up boondockery here. The Big Scambies want document production of what IRS told Congress and the Comptroller General per the Congressional Review Act, 5 U.S.C. § 801(a)(1)(A). The CRA is twin sibling to the APA.

IRS folds on Notice 2017-10 being a “rule” within the meaning of the APA. The Big Scambies were claiming IRS said Notice 2017-10 wasn’t a “rule,” but told Congress and the CG it was. So they want Notice 2017-10 and Notice 2017-29 (2017-10 housekeeping stuff) material. But see supra, as my high-priced, A-list colleagues say. IRS agrees it’s a “rule,” but is exempt from notice-and-comment.

Judge Scholar Al: “While believing that none of the documents petitioner seeks is relevant, respondent has voluntarily produced the CRA reports covering Notice 2017-10 and represents that he will include them in the administrative record. Acknowledging this representation, we agree with respondent that petitioner is entitled to none of the other documents it seeks. Notice 2017-29 is not at issue in this case; CRA reports and related correspondence addressing that Notice are thus irrelevant. And because the Commissioner acknowledges that he submitted CRA reports to Congress because he regards Notice 2017-10 as a ‘rule,’ petitioner needs no ‘internal communications, memoranda, reports or other documents that may tend to show how or why any [CRA] reports were submitted to Congress.’” Order, at pp. 2-3.

No document production. But I’d like to see what Judge Scholar Al does with summary J on APA.

I give the Big Scambies’ counsel a Taishoff “Good Job, First Class” for playing a strong Hewitt gambit thus inducing the “rule” fold. I wouldn’t bet the ranch on the exemption ploy in 11 Cir. Check out 5 USC §§551(4) and 553.

But I give IRS’ lone counsel a Taishoff “Good Job, Third Class” for a wise fold.

I’ve reached out again to a colleague, one of the attorneys for petitioner, for a comment, but I expect I’ll get the same answer I got back last November. See my blogpost “Straining Out a Knat,”11/15/21. I remember a Tax Court Judge years ago refusing a petitioner a gag order on account of my blog comments, stating the public’s right to know. But given the (admittedly correct) reticence of attorneys, there are already de facto gag orders in place all over.

Edited to add, 7/19/22: My colleague responded. As expected, no comment, except that he joins me in looking forward to the opinion on the exemption of Notice 2017-10 from the APA.