Judge David Gustafson is a great one for conundrums. You’ll doubtless recall Hendrieka Fitzpatrick, Docket No. 12797-21P, filed 6/28/22, from her previous appearance in this my blog. A fine batch of conundrums appeared then; see my blog “Lien On Me,” 3/8/22.

Well, maybe IRS sorted out that set of conundrums, because they’re back with a motion for summary J, tossing Hendrieka (that’s Doc Hendrieka). But before letting IRS and Doc Hendrieka sort out whether Doc Hendrieka underreported $195K or $60K for year at issue, Judge Gustafson can’t resist throwing a couple new conundra (hi, Judge Holmes, and Judges Scholars Al and Pat) into the mix.

“We assume, for purposes of this motion, that Dr. Fitzpatrick has a colorable argument that this determination [the $195K] is excessive. On the foregoing facts, one might conclude that her gross receipts totaled $195,736 (the amounts that the third parties had reported), that the $135,624 she reported on Schedule C was included in that total and was not in addition to it, and that therefore she had failed to report only $60,000 (not $194,868), so that her additional tax liability was much less than the $58,000 that the IRS determined. In addition, for all we know, she might have a ‘reasonable dispute’, see § 6201(d), that she did not in fact receive all of the $195,868 that the third parties reported to the IRS. On the other hand, she might not be able to substantiate all of the $134,507 of business expenses that she claimed on Schedule C. An adjudication of her 2013 liability (which we do not undertake,  for reasons explained below) would presumably look into all these matters.” Order, at p. 2.

This is a Section 7345(e)(1) passport grab case; the only issue is whether IRS reported a qualifying tax debt, not whether Doc Hendrieka actually owes same. That she can sort out administratively in an audit reconsideration (but no appeal to Tax Court), or “…petitioner may file a claim for refund. If her administrative claim for refund is denied, petitioner may pay the full assessed liability and then file a refund suit in Federal District Court or the U.S. Court of Federal Claims.” Order, at p. 7.

I don’t know if Judge Patrick J (“Scholar Pat”) Urda adds an understanding of Nineteenth Century French political philosophy to his many accomplishments, but it wouldn’t surprise me if he did. And certainly the anonymous SO who applies the doctrine in Alejandro Serna, T. C. Memo. 2022-66, filed 6/27/22 is a strong partisan thereof, knowing or unknowing.

Al took a big draw from his 401-whatever in year at issue, to buy a house in the appropriate school district, so that his four children, two of whom are developmentally-disabled, can attend the right school. Also his ex-wife resides therein. Also Al only claims one of the four as a dependent on year-at-issue return; filing status not stated. Return is late and $68K self-reported short. Al claims he didn’t know about the Section 72(t) youth add-on (tax? chop? Pick ’em), and always paid on time. Al wants an OIC, but the equity in said house is north of $150K, so he doesn’t get the $10K OIC he wants even though his expenses for his disabled son are big (and the SO recognizes this). But Al does get a NFTL with CNC thrown in at no extra charge.

And Judge Scholar Pat is down with that.

Al’s trusty attorney petitions the NOD on the NFTL and CNC, and throws in much “somber reasoning and copious citation of precedent.” Judge Scholar Pat finds none of it on point. The SO looked at all the facts and circumstances Al and trusty attorney put before her, and, like Billy Yeates’ Irish fighter pilot “balanced all, brought all to mind.”

Trusty attorney seems to think NFTL means IRS will grab on the spot, tossing disabled kids to the cliché. Judge Scholar Pat: “As an initial matter, Mr. Serna insinuates over and again that the collection action at issue, i.e., the NFTL filing, will necessarily result in an immediate sale of the house. An NFTL filing, however, principally protects the IRS’s interest in a property against other creditors. Had the IRS sought to collect the tax liability by levy against the house, Mr. Serna would have had an opportunity to request a CDP hearing to challenge such action as improper. See § 6330(a), (b).” T. C. Memo. 2022-66, at p. 12. (Citation omitted).

And while filing late or not at all in the past and currently will defeat an OIC and maybe other CAlts, filing and paying on time in all other years doesn’t guarantee a free pass on an OIC. “Mr. Serna additionally emphasizes his prior tax compliance in arguing the settlement officer abused her discretion. While we have no reason to doubt his history of compliance, lack of tax compliance is a bar to acceptance of an offer on effective-tax-administration grounds; compliance, conversely, does not alone justify acceptance. See Treas. Reg. § 301.7122-1(b)(3)(ii)–(iii), (c).” T. C. Memo. 2022-66, at p. 10, footnote 8.

So justifying the headline first set forth at the head hereof (as my already-on-their-third-Grey-Goose-Gibson colleagues would say), Judge Scholar Pat gives the anonymous SO a gold star.

“The settlement officer here, acting of her own volition, put Mr. Serna’s account in currently-not-collectible status, effectively ending further collection efforts unless his income increases substantially. Her decision to do so was not required in light of Mr. Serna’s equity in the house. See Am. Limousines, Inc. v. Commissioner, T.C. Memo. 2021-36, at *15 (‘[A] settlement officer’s denial of currently not collectible status is not an abuse of discretion where the taxpayer lacks sufficient income to pay its tax debts but owns assets that could be liquidated to provide funds to satisfy that debt.’). We see her action in sustaining the NFTL filing, while placing the account in currently-not-collectible status, as striking a sensible balance between the IRS’s need to efficiently collect the liability and Mr. Serna’s concern that any collection action be no more intrusive than necessary.” T. C. Memo. 2022-66, at pp. 12-13.

For the Am. Limousines story, see my blogpost “When You’re Down and Out – Part Deux,” 3/25/21.

WordPress, the business that sponsors this my blog, is once again inserting advertisements on each of my blogposts, past, present, and (I assume) future, as I refuse to pay protection money to prevent this.

That is of course their right, as their cyberspace is private property. WordPress can rent out their spaces on such terms as they see fit, and unhappy lessees can always go elsewhere.

That is, until some Musk Ox moves in and imposes his own régime.

So, wedded as I am to “the same old stand,” as Justice Cardozo defined the basis of good will, I again warn my readers that I have no control over what advertisers or what advertising content WordPress permits or excludes; I receive no compensation from any advertiser. I make no guarantee, warranty, representation, or undertaking, with respect to any advertisement or anything in any thereof contained. Anyone who deals with, purchases, leases, subleases, licenses, acquires (whether by purchase, sale, exchange, disposition or otherwise) anything or service, tangible or intangible, from any advertiser, does so strictly and exclusively at their own risk. I expressly disclaim any obligation or liability in respect of any thereof.

Anyone reading anything on my site, by the mere act of visiting the same, consents and agrees to all the foregoing without reservation.

I gave Gina E. Lewis’, Docket No. 12930-18, filed 6/24/22, trusty attorney a Taishoff “Good Try, First Class,” for his cannily and craftily drafted Section 7430(g) qualified offer, in my blogpost “Innocence Disqualified,” 3/3/22. Trusty attorney allowed assessment of the whole boat set forth in the SNOD, but reserved rights to claim OIC, innocent spousery, and whatever else he could think of. IRS folded, Gina sought 7430 admins and legals, but Judge Pugh shoots down the QO because it never specified the dollar amount conceded, only that assessment was conceded.

Now trusty attorney wants vacation. He starts by claiming no jurisdiction, as SNOD not sent to Gina’s last known address.

Nonstarter. “A notice of deficiency not mailed to the taxpayer’s last known address can still be valid. If the mailing results in the taxpayer actually receiving notice with ample time remaining to timely file a petition, it meets the conditions of section 6212(a) ‘no matter to what address the notice successfully was sent.’ In a limited but established line of cases, incorrectly addressed notices have resulted in our jurisdiction where the taxpayer receives ‘actual notice [of the contents of the deficiency notice] without prejudicial delay.’ By providing the safe harbor of section 6212(b), Congress did not intend to invalidate actual rather than constructive methods of communicating respondent’s determination.” Order, at pp. 3-4. (Citations omitted). And Gina’s petition was timely, even though she only heard a “rumor” that a SNOD had issued, so filed a “protective” petition, Order, at p. 4.

Well, SOL had run when SNOD issued.

Except.

“Answering petitioner’s amended petition, respondent stated that petitioner executed a Form 872, Consent to Extend Time to Assess Tax, extending the statute of limitations for the years in issue to May 11, 2018. Petitioner acknowledges that she extended the statute of limitation to this date, but averred in her petition that it was under duress. It is the taxpayer’s burden to affirmatively show the written consent is not valid. Petitioner has not carried this burden, and does not appear to dispute that the statute of limitations expired on May 11, 2018, in her motion to vacate. Respondent mailed the notice of deficiency on March 28, 2018, before the period of limitations for assessment of tax for the years is [sic; should be “in”] issue expired.” Order, at pp. 2-3. (Citation omitted).

Remember, Gina and trusty attorney refused to sign a stip of settlement, despite Judge Pugh’s pushing them. So IRS folded (maybe former spouse did stump up the deficiencies).

“Petitioner may have adopted her strategy (of refusing to agree to a settlement stipulation) to ensure she could avail herself of the qualified offer provision in section 7430(c)(4)(E)(i), as we discussed in our opinion, see Lewis, 158 T.C., slip op. at 6 n.6,  but having done so to preserve that argument she must accept the consequences of the failure to reach an agreement. We agree with respondent’s characterization that ‘[p]etitioner effectively is arguing both sides. On one hand, [p]etitioner has argued that all issues were resolved (by filing the motion for litigation costs) and on the other hand, [p]etitioner argues that certain matters were not resolved in the Motion [to vacate or revise].’” Order, at p. 8.

Whatever, no vacation.  But trusty attorney put on a good show, and he did get Gina off the hook on the SNOD.

Alfred Christopher Morgan, T. C. Sum. Op. 2022-10, filed 6/22/23, caps a busy day for this blogger with his successful defense of his Section 911 foreign earned income exclusion. Alf spent the year at issue in The Kingdom, controlling the quality of the Saudi Arabian National Guard’s chopperjockies as employee of a US contractor. And Alf put in the requisite 330 days outside the Land of the Free, although his testimony and his belated Form 2555 didn’t precisely jibe.

Alf kept his home in GA, but his adult,  non-dependent daughter lived there. He kept his US bank account, because that’s how he got paid. He had US health insurance (as retired military), but also got Saudi coverage.

He and his fellow contractors did travel a wee bit. “On the weekends, which are Fridays and Saturdays, he typically traveled with other contractors to places including South Africa, Bahrain, and Dubai to partake in recreational activities that are otherwise forbidden in Saudi Arabia.” T. C. Sum. Op.2022-10, at p. 3. Roger that.

But for the rest, he rarely visited The Land of the Free, and his activities were extensively local in The Kingdom.

Judge Wells: ” On the basis of the record before us, we conclude that petitioner had stronger domestic ties to Saudi Arabia than he did to the United States in[year at issue]. His community involvement and recreational activities in Saudi Arabia were relatively significant in comparison with those in the United States, and overall, most of his time had been spent in Saudi Arabia. He dedicated much of his free time in Saudi Arabia to serving as the president of a local social club and organizing charitable events such as food and clothing drives in order to benefit the local community.  These charitable events benefited local orphanages, homeless shelters, and members of the local community who worked at the compound. He also spent his free time frequenting local grocery stores and restaurants,  using the recreational amenities at the residence, and traveling with other contractors from the compound to nearby foreign countries. He had obtained an Iqama, which is a Saudi Arabian resident alien card or visa indicating proof of his legal residence; Saudi Arabian medical insurance; and a Saudi Arabian driver’s license. He also did not seek work in any country outside of Saudi Arabia. Taken together, these facts evidence an effort to create a domestic life for himself in Saudi Arabia. See, e.g., Linde v. Commissioner, T.C. Memo. 2017-180.” T. C. Sum. Op. 2022-10, at p. 8.

For the story of Jesse A. Linde, see my blogpost “The Helicopter Pilot and the Virgin,” 9/18/17.

True, Alf paid no taxes in The Kingdom, but that’s because there’s no income tax; everything is VAT. And he owned no realty in The Kingdom, but that’s because his housing was employer-furnished, just like the military. Alf was engaged to a lady who’d lived thirty (count ’em, thirty) years in The Kingdom, and who ran a local beauty parlor. And his employer deemed him valuable and essential.

Of course, Alf filed and paid late on whatever income he had that wasn’t excludable, so he gets chopped for that.

Alf wins the 911 joust.

Btw, Alf’s social club in The Kingdom, of which he had been president, was the WorldWide Fraternity of Turtles. You know, the amphibian dudes whose home is wherever they are.

David Gilmartin, T. C. Memo. 2022-64, filed 6/23/22, holds a Ph.D. degree in economics. He also consulted for, among others, “General Electric Capital Corp., Pfizer, Inc., WCI Financial Corp., NU Skin International, Inc., the Builders Association, Inc.,  National Economic Research Associates, Allegiance Group, and Atlantic Search Group, Inc.” T. C. Memo.2022-64, at p. 3. In addition, he was from time to time employed by “Klein Management Systems, Software Guidance & Assistance, Inc., Trans Action Information, Aerotek, Inc., Network Integration, and Eliassen Group, LLC.” Idem, as my expensive colleagues would say. All the foregoing supplied Dr. Gilmartin (hereinafter “Doc Dave”) with Forms 1099-MISC or W-2, as appropriate, over the twelve (count ’em, twelve) years at issue.

Except.

Doc Dave never filed or paid, and frivoled when on trial in USDCSDNY, and again before 2 Cir when he appealed the three-year stretch his frivolity earned him.

IRS gave Doc Dave SFRs when he finished the stretch, which he petitioned and frivoled.

Now Judge Vasquez is a pleasant gentleman. His courteous, almost courtly, manner is well-known. But Doc Dave seems to be a wee bit much.

“At the conclusion of trial, respondent made an oral motion to impose a section 6673(a)(1) penalty against petitioner. The Court told petitioner that there was extensive caselaw rejecting his arguments and sanctioning taxpayers who made similar arguments. The Court also read the text of section 6673(a)(1) to petitioner before taking respondent’s Motion under advisement.

“Petitioner subsequently filed a 147-page Simultaneous Opening Brief expounding the frivolous arguments he had raised at trial.” T. C. Memo. 2022-64, at p. 6.

I’ll spare you Judge Vasquez’s trudge through the governing statutes and regs that impose and sustain Doc Dave’s manifold liabilities.

” Petitioner was aware that the arguments he advanced in this case have been universally rejected by this and other courts. Before trial he was convicted of, among other things, tax evasion under section 7201.  In a summary order affirming his conviction, the Second Circuit stated that it has ‘consistently rejected’ petitioner’s arguments. After petitioner advanced the same arguments at trial, this Court advised him of our longstanding caselaw rejecting his arguments. The Court also read the text of section 6673(a)(1) to petitioner. Despite our warning, petitioner filed a 147-page brief expounding his frivolous arguments. We will therefore impose a penalty of $5,000 against petitioner pursuant to section 6673(a)(1).” T. C. Memo. 2022-64, at p. 11. (Footnote omitted, but it’s a cite to 2 Cir’s stitching up of Doc Dave.).

Judge Patrick J. (“Scholar Pat”) Urda sets forth his policy with respect to frivolites. In this case it’s Louis U. Giannini and Dawn M. Giannini, T. C. Memo. 2022-65, filed 6/23/22, but Lou does fess up to his USPS salary and wages, even though he doesn’t spell all that well. It’s Dawn, whose IT wages from the private sector the Gianninis claim is non-taxable, with the usual protester jive.

Lou and Dawn get four (count ’em, four) pages of “somber reasoning and copious citation of precedent,” apparently because they’re newbies to frivolity.

Notwithstanding their rookie status, Lou and Dawn get the yellow card from Scholar Pat.

“Pursuant to section 6673(a)(1), we have the authority to impose a penalty of up to $25,000 on a taxpayer who pursues a position that is frivolous or groundless. The Gianninis seem to be relatively recent converts to the false faith of frivolous tax positions; we have seen no other case in which they have made these types of arguments. We thus choose not to impose a penalty at this time. We caution the Gianninis, however, that should they again profess these or similar arguments, they will face unhappy consequences.” T. C. Memo. 2022-65, at p. 5.

Michael D. Brown, 158 T. C. 9, filed 6/23/22, is back, still trying to get his OIC from his $50 million-plus tax liability accepted. Nothing if not resourceful, Mike claims 27 (count ’em, 27) months had gone by from Mike’s submission until Appeals issued the NOD bouncing same, so Section 7122(f) says the OIC is deemed accepted.

There’s much backstory on Mike on this my blog, going back to 2013, but I’ll spare you the catalogue now. But see infra, as my expensive colleagues say.

Mike sent in his OIC, but six months later the collection specialist handed it back to Mike, saying there were other investigations pending at the time that might affect his delinquent account. While Judge Albert G (“Scholar Al”) Lauber doesn’t elaborate, maybe it was some of the SDLIAs Mike was flogging. See my blogpost “Not Ready For Prime Time,” 12/2/13.

Mike and Appeals jousted, but finally Appeals issued the SNOD. Mike tries the “deemed accepted” gambit, even though he’d lost that once before in 9 Cir.

Judge Scholar Al: ” For purposes of section 7122(f), petitioner’s OIC was ‘deemed pending only for the period between the date the offer [wa]s accepted for processing and the date the IRS return[ed] the offer to [him].’ Treas.  Reg. § 301.7122-1(d)(2). His offer was accepted for processing… but it was returned six months later…. See Rev.  Proc. 2003-71, § 5.06, 2003-2 C.B. at 518 (‘An offer to compromise is considered to be returned on the day the Service mails, or personally delivers, a written letter to the taxpayer informing the taxpayer of the decision to return the offer.’). Because the IRS returned petitioner’s OIC within 24 months of submission, his OIC was not deemed accepted under section 7122(f).” 158 T. C. 9, at p. 8.

The NOD terminates the CDP; the hand-back terminated the OIC. Mike tries to conflate the two, and that doesn’t fly.

“It is not uncommon for taxpayers to submit an OIC (as petitioner did here) at the outset of a CDP hearing. If that offer is returned by the COIC unit, the taxpayer may urge the SO to reverse that decision, but the taxpayer may also pursue other options. He might challenge his underlying liability, request ‘innocent spouse’ relief, propose an installment agreement, or seek withdrawal of a tax lien filing. These issues may require the SO to evaluate multiple submissions of financial information, seek assistance from the IRS Examination Division, and/or consult with the IRS’s Cincinnati Centralized Innocent Spouse Operation. Even absent a pandemic, these events may consume a considerable amount of time and possibly prolong the CDP case beyond 24 months. The Secretary recognized this possibility in Notice 2006-68, § 1.07, 2006-2 C.B. at 106, directing that ‘[t]he period during which the IRS Office of Appeals considers a rejected offer in compromise is not included as part of the 24-month period.’

“Acceptance of petitioner’s argument—that Appeals must issue the notice of determination within 24 months after an OIC is submittted—could place the SO in a dilemma. If the SO by that deadline has not resolved every issue raised by the taxpayer, the SO could be motivated to issue a notice of determination prematurely, lest the OIC be ‘deemed accepted.’ But doing so would risk reversal and remand for failure to address all ‘relevant issue[s] relating to the unpaid tax or the proposed [collection action].’ § 6330(c)(2)(A). That would prolong the case even further, defying logic and undermining Congress’ intent.” 158 T. C. 9, at p. 12. (Footnote omitted, but it says that if Mike’s reading is correct, wits, wags, and wiseacres might send in an OIC with their Form 12153, and try to yoick the collection specialist and Appeals around until the 24-month clock ran out, and claim deemed acceptance).

Hurry up and read High Rocks, LLC, Jeffrey Bland, Tax Matters Partner, Docket No. 14944-20, filed 6/23/22, before the Genius Baristas remove the Post-It Note^® they left at page 4.

Now for the rest of the story, from Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan. The High Rockers are another GA boondockery, backwoods scrub with an asserted $6 million conservation easement charitable write-off. IRS says they left off the statement of basis or acquisition cost; the High Rockers claim their attorneys and CPAs told them they didn’t need it.

“An appraisal summary must include the cost or adjusted basis of the donated property. Treas. Reg. § 1.170A-13(c)(4)(ii)(D). Failure to comply with this requirement generally precludes a deduction. See § 170(f)(11)(A) (providing that ‘no deduction shall be allowed’ unless a taxpayer meets the appraisal summary requirements of section 170(f)(11)(C)). Section B, Part I, Box 5(f) of Form 8283 requires the taxpayer to supply the ‘Donor’s cost or adjusted basis.’ High Rocks did not supply this information on Form 8283 or in its attached explanation.

“Respondent contends that the deduction was properly disallowed because High Rocks failed to report its cost or adjusted basis on Form 8283 and thus failed to submit a fully completed appraisal summary. Petitioner contends that High Rocks substantially complied with the applicable reporting requirements. Alternatively,  petitioner contends that High Rocks reasonably relied on its advisors in preparing and filing its Form 8283.” Order, at p. 4.

Good-faith reliance is a valid defense to failure to disclose. But summary J, which IRS seeks here (as usual), isn’t the place to decide that.

“Petitioner contends that High Rocks, when completing Form 8283, reasonably relied on advice from the attorneys and accountants who helped prepare its return. Petitioner asserts that these advisers concluded that the instructions to Form 8283 were ambiguous and that High Rocks was advised that it was acceptable to state on Form 8283 that the basis was not determinable. We conclude that resolution of this issue will require us to address several questions as to which genuine disputes of material fact appear to exist.  Accordingly, the question of whether the reasonable cause defense in section 170(f)(11)(A)(ii)(II) applies in this case is inappropriate for summary adjudication.” Order, at p. 5 (Citation omitted).

There’s argy-bargy about whether the High Rockers kept too much room to use, modify, improve, or otherwise muck about the property in the deed of easement, without the consent or knowledge of the 501(c)(3) protector, thus blowing off perpetuity.

Note IRS doesn’t suggest judicial extinguishment, as Hewitt put paid to that in 11 Cir.

“On the basis of the record that currently exists, we conclude that respondent’s motion must be denied as to the perpetuity requirement. It is a factual question whether the reserved rights High Rocks could exercise without giving notice to (501(c)(3)) would have had an adverse impact on easement’s conservation interests. Likewise,  the question of whether the exercise of a right to which consent is deemed given would impair any conservation purpose presents factual questions ill-suited to summary adjudication.” Order, at p. 7 (Citation omitted).

So Ch J TBS Kerrigan gives IRS summary J that the High Rockers didn’t include the basis or acquisition statement, but the good-faith reliance and perpetuity skirmishes are for trial.

Turns out there was an order worth noting on 6/22/22, Robert S. Polner, Docket No. 8620-22S, filed 6/22/22. Robert, pro se (as far as a docket search shows; can’t tell if he’s a lawyer himself) moves for entry of decision that he owes, and is owed, nothing to, or by, the fisc.

IRS doesn’t object, so Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan enters decision accordingly.

I award Robert a Taishoff “Good Job.”

It’s obviously not enough for IRS to concede the SNOD; what if IRS changes its mind? SOL on collection might not yet have run, and the SNOD gave Robert a chance to contest if he timely petitioned, which he did. No prosecution equals concession, and equitable estoppel is a mighty hard row to hoe. Entry of decision starts the Section 7481(b) 90-day finality clock, and claim preclusion is definitely thereupon on the menu.

I said it ten (count ’em, ten) years ago: “One sure way to drive a coach bananas is to fail to finish a play.”

Finish the play.