If You Think You Are

As I’ve said before, my grasp of the Italian language is extremely limited; see my blogpost “Che Si Firma È Perdutto,” 2/17/17. Wherefore I beg pardon for my attempt at Englishing the title of Luigi (“Great Name!”) Pirandello’s 1917 proto-Surrealist drama.

But it does furnish me with another soapbox for my denunciation of Boechler and the Supremes’ endeavor “to bring some discipline to use of the jurisdictional label.” Boechler, at p. 3.

Jennifer Wagner’s petition was filed a mere 1,754 days after issuance of the SNOD, which petition she now wishes to dismiss without prejudice.

Well, why not? With equitable tolling and the Supremes’ indulgence, she can come back in another four years and try again. The 90-150 day cutoff in Section 6213(a) is now, like Mr. Depp’s pirates’ Code, “guidelines…aspirational goals.”

While Jennifer says nothing about her four-year delay, “…citing Internal Revenue Manual 35.8.1.3.1 (Aug. 15, 2019) (we note that petitioner incorrectly refers to this as part of the Internal Revenue Code)  and Fed. R. Civ. P. 41(a)(2), petitioner requests that the Court dismiss this case without prejudice because ‘this Court does not have to make a decision regarding the deficiency and the Commissioner will not suffer any prejudice.’” Order, at p. 1.

While Jennifer moves the IRM into the IRC, she misses Section 7459(d), which says that when a petition is tossed otherwise than for jurisdiction, IRS wins whatever they asked for in the SNOD.

Judge Tamara Ashford is appropriately chastened by the High Court’s pronunciamento.

“In the instant deficiency case, it would be helpful for the Court to hear from petitioner regarding the aforementioned two issues that have not been addressed in her motion.” Order, at p. 2.

It seems Jennifer has counsel. l was unable to reach him directly at time of publication, but will attempt to reach him for comment by email. I will publish any on-the-record response unedited and in full. But the tactic is interesting, and I crave enlightenment.

Btw, the case is Jennifer Wagner, Docket No. 16891-21, filed 6/3/22.

The House That Vic Built, In The City of the Stateless, known as and by street number 400 Second Street, North by Northwest, reopens its doors to all and sundry having business before this honourable Court, on Monday, June 6, 2022, at 0800 hours local time.

Let all draw nigh and give ye good attention, and ye all may be heard (maybe), the Hon. Kathleen (“TBS = The Big Shillelagh”) Kerrigan presiding.

Here’s the skinny: https://ustaxcourt.gov/resources/press/06032022.pdf

That’s the title of the case; conveniently, it’s also the title of this blogpost. The case is W.T.F., Inc., Docket No. 2833-19, filed 6/2/22. It’s a handy springboard to a further rant anent Boechler and the Supremes’ idea of bringing rationality to Tax Court’s jurisdictional prerequisites.

Brief timeline: Petition filed 2/19. IRS moves to toss for lack of prosecution, 11/20. On return of OSC, W.T.F.’s representative (title unstated) shows on second call, and case continued. Although W.T.F. filed an ownership disclosure four (count ’em, four) days later, they filed nothing else then or since. So special remote trial set for 8/21. Again W.T.F.’s rep shows, IRS’ counsel moves to toss, but nothing happens. Meantime, IRS’ counsel has filed four (count ’em, four) status reports.

So Judge Elizabeth Crewson Paris orders that W. T. F. “…shall file a written response why this case should not be dismissed and decision entered against petitioner for the amounts and years set forth in respondent’s motion.” Order, at p. 1.

It hardly matters if equitable tolling is now permitted in deficiency cases, so that assessment and collection can be stayed months after the 90-150 day statutory deadline has passed, per Section 6213(a).

Here we have a stay of assessment and collection since 2/19, a mere three-and-a-quarter years, during which petitioner has filed one (count it, one) single-page form and a change of address.

I shall again note that, in Our Fair State’s courts, to get such a stay of proceedings one must show a meritorious claim, and may be required to post a bond.

Oh yes, response to Judge Elizabeth Crewson Paris’ latest order is due in ten days. Any takers for a bet on what happens?

Brian Perkins, Docket No. 1990-22, filed 6/1/22, gets what we former stamp collectors prized, a first day of issue.

Even though tossed for failure to ante the sixty George big blind, his is the first order to bear the signature of Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan as Chief Judge.

A collector’s item.

They stand, in my imagination this morning, “in ‘ollow square” next the reflecting pool. The Judges, Senior Judges, and STJs, with their law clerks deferentially a pace behind. The hardlaboring clerks and flailing datestampers form another side, with Ch Clk Servoss at their head. Maintenance and service personnel, the invisible hands who bring the Glasshouse on Second Street, NW, to life each day, stand in the sunlight with the “gear and tackle and trim” of their several trades held proudly. And the staff of the Judges’ Cafeteria, with their banners proclaiming cups coffee, pieces pie, and slices pizza (hi, Judge Holmes) complete the square.

Ch J Maurice B (“Mighty Mo”) Foley, solemn but affable as always, presents the Gavel of Chieftainship to Ch J Elect Kathleen (“TBS = The Big Shillelagh”) Kerrigan. They exchange a formal handshake.

Then off to the buffet table and coffee wagon for the reception.

No, I’m not taking advertising; WordPress is doing that. So this does not concern the Ancient Mariner and his bitter lemon. Today Judge Elizabeth A. (“Tex”) Copeland is again exploring that “extraordinary method of discovery,” the taking of depositions of expert witnesses. The case is Anadarko Petroleum Corporation, et al., Docket No. 23018-18, filed 5/31/22.

Why depositions of experts should be extraordinary in The Glasshouse on Second Street, NW, still mystifies me even after all these years. The method is not extraordinary anywhere else. Every summer student law clerk learns that as soon as your pre-answer motions get tossed, you bang out your answer, first demand for bill of particulars, first notices to produce and to admit, interrogatories, and deposition notices. In every court, that is, except United States Tax Court.

Before my Empire State colleagues call me out, I am aware of Our Fair State’s special rules for special proceedings, and for expert witnesses, but I need not burden my international readers with that.

Judge Tex Copeland: “Our Court allows depositions of experts, but still treats them as ‘an extraordinary method of discovery.’ Rule 74(c)(1)(B). What this Division of the Court looks for in considering motions to depose is the general state of discovery, the stakes involved, and whether the depositions would materially aid the trial and possible settlement of the consolidated cases.

“The key fact here is that the stakes in this case involve a proposed deficiency that exceeds $850 million. The Court acknowledges the parties’ disagreements about how cooperative each has been in informal discovery, but in a case of this size there is bound to be toing-and-froing between two highly qualified teams of lawyers.” Order, at p. 5.

I’ll leave aside the particulars of this discovery jousting between “two highly-qualified teams of lawyers,” other than to note that one expert wild-carded in material from years outside the years at issue.

Unhappily, the clock has run out on formal commentary on Ch J Maurice B (“Mighty Mo”) Foley’s proposed Rule changes. “The door is shut; we may not look behind,” as a far better writer than I put it.

But why should allowing a routine discovery process vary among divisions in Tax Court?

If it be objected that the poor pro se, zeal for whom caused the Harvard Low Income Tax Clinic to heave a monumental monkey wrench into the entire IRS collection process, cannot afford either to depose or be deposed, then have a dollar cutoff. If you have to add a zero, as ex-Ch J L Paige (“Iron Fist”) Marvel suggested so long ago, then permit depositions only with leave of court. See my blogpost “Add A Zero,” 6/26/15.

Taishoff says why not use the Section 7623(b)(5) numbers? $200K gross income of petitioner for any year at issue, and the amount at issue for all years in the aggregate more than $2 million, adjusted for inflation. More than those, depositions on demand if Branerton play-nice doesn’t work.

Below that, leave of court only. Whatever numbers you like, Rule 74 needs an overhaul.

As this day is a public holiday in the District of Columbia and everywhere else in the United States of America, US Tax Court is closed, and so am I.

The holiday began, my source tells me, following the Civil War, to decorate the graves of those who died fighting for our country. The name was changed a century later. The purpose was not.

I shall not expatiate upon what the day has become, lest this blogpost become unfit for family reading.

I shall once again note that all gave some, some gave all, but no one has the right to give nothing.

No, not a remake of Robert Graves’ 1929 succès de scandale. I note that, with the Memorial Day holiday approaching, the expiration of term of service of Ch J Maurice B (“Mighty Mo”) Foley is upon us.

His record of reform and guidance is a model. I’m sure I’m joined by the Tax Court Bar and Tax Court barflies in congratulating Ch J. Mighty Mo and thanking him for his efforts. After a distinguished academic, governmental, and judicial administrative career, let us welcome him back to the trial bench.

He can then rest from such labors as Yolanda M. Johnson-Bryant, Dockets Nos. 76784-22, 11674-22, filed 5/27/22. He deserves a break from guiding Ch Clk Servoss and her minions through the following.

” ORDERED that the Clerk of the Court shall copy pages two and three of the Petition, filed May 24, 2022, at Docket No. 11674-22 and shall file them as of the date of service of this Order as petitioner’s First Amended Petition at Docket No. 7674-22.

” ORDERED that the Clerk of the Court shall copy page four of the Petition, filed May 24, 2022, at Docket No. 11674-22 and shall file it of the date of service of this Order in the correspondence file at Docket No. 7674-22 as petitioner’s Statement of Taxpayer Identification Number.

” ORDERED that the Clerk of the Court shall copy page six of the Petition, filed May 24, 2022, at Docket No. 11674-22 and shall file it as of the date of service of this Order as petitioner’s Motion to Proceed Remotely at Docket No. 7674-22.” Order, at pp. 1-2.

A client who called me back into service after his relationship with my successor proved less than salutary, finally told me “Lew, you’re turning into a curmudgeon.” Well, if my colleague Peter Reilly, CPA, thinks I’m a “grumpy old man,” then maybe they’re both right.

So if the cliché fits, I’ll wear it.

So, fair warning having been given, I can play the grammar police.

Judge Elizabeth A. (“Tex”) Copeland confounds the possessive adjective with the contraction, letting the apostrophe (a fossil that we should long ago have discarded) in where it shouldn’t be.

“…particular attention to Petitioner’s request that the Court vacate it’s January 25, 2022 Order granting Respondent’s Motion for Entry of Order that Undenied Allegations be Deemed Admitted Pursuant to Rule 37(c).” Order, at p. 1. (Emphasis added).

No, Judge, you mean “the Court vacate its January 25, 2022 Order.” You refer to the Court’s order, that is, the order of the Court, not “it is January 25, 2022 Order,” which makes no sense.

Again I apply for the post of official proofreader.

Oh yes, the order is Raphael Bershadsky, Docket No. 14021-20, filed 5/27/22.

Law office miscues are a fact of life. I remember a couple I’ve done that bring a cold sweat decades later. So please, reader, don’t think I’m indulging in schadenfreude when I tell the tale of Angela M. Hammock, Docket No. 5290-18L, filed 5/26/22, as related off the bench by Judge Ronald L. (“Ingenuity”) Buch.

Angela inherited her parents’ business. A close family friend who’d invested with her parents took over running it. The friend not only helped Angela, but helped himself.  Apparently to the company’s money. Angela hired a CFO, who discovers the family friend’s defalcations. So of course TFRPs rain down. Angela as treasurer and occasional checksigner is in the IRS crosshairs, so she retains counsel. The CFO lawyers up with the same firm as Angela.

Judge Ingenuity Buch takes up the story.

“…her counsel faxed the revenue officer a Form 2848, Power of Attorney and Declaration of Representative. Upon receipt of the Form 2848, the revenue officer notified one of Ms. Hammock’s lawyers that the form was not processible because it was not completed correctly. The form did not identify the tax form number or tax period for which counsel was representing Ms. Hammock. In response, Ms. Hammock’s lawyers submitted a corrected Form 2848 the following day, but that form was not signed by Ms. Hammock. Instead, the new form relied on Ms. Hammock’s…signature from the previous Form 2848. The revenue officer rejected the new Form 2848 for that reason. The revenue officer’s contemporaneous notes…indicate that Ms. Hammock’s lawyers were still trying to obtain Ms.  Hammock’s signature on the new form from her. The record does not show any further activity regarding securing or submitting a corrected or properly signed Form 2848 for Ms. Hammock until after the revenue officer closed the examination.

“In the meantime, a parallel process was taking place with respect to Mr. L, the CFO of [business]. He was represented by the same lawyers as Ms. Hammock. His initial Form 2848 was rejected for similar reasons; but his updated form was accepted.” Transcript, at pp. 6-7. (Name omitted).

So counsel never got the Letter 1153 for Angela, and couldn’t represent her at Appeals, as they hadn’t a proper POA. Angela claims she never got the Letter 1153, as she was out of town at a rodeo when it arrived. Except IRS has USPS certified mail receipts showing the Letter 1153 was delivered to an individual at Angela’s  last known address.

Nonreceipt by Representative doesn’t defeat a prior opportunity lockout, and Angela doesn’t have the interception evidence that saved Antonio Lepore. See my blogpost “You Didn’t Get It – Part Deux,” 5/31/13 for Antonio’s story.

Angela’s lawyers strive mightily, but the evidence is against them, and Angela has BoP and loses.

I doubt I’ll ever know what happened in Angela’s lawyers’ office, either during or after. But I don’t doubt it will not be pretty.

Takeaway is obvious: POAs are essential. Fill them out with care. Make sure each gets to the right IRS service center timely, and into the Central Authorization File. Get the CAF number inscribed on the file.

Unless thine is the power, thine will be neither the kingdom nor the glory.