You know there’s gonna be a couple wee kerfuffles when a trio of lawyers get involved. Judge Alina I. (“AIM”) Marshal has got a trio in Eric J. Geppert & Mary L. Geppert, Docket No. 946-20L, filed 1/20/21. If my sources have it right, Eric is a white-shoe alum from the mergers and acquisitions side. He is represented by a FL criminal appeals specialist, and a fellow tax blogger from OH. So you know this is gonna be good.

Here’s a wee sample.

IRS wants summary J. Eric gets three (count ’em, three) extensions, then replies. Then Eric’s FL counsel and his OH counsel both seek to stall consideration of the summary J motion. But Eric isn’t finished. Judge AIM Marshall gets assigned to the case, and here’s what she finds.

“On September 15, 2020, petitioner Mr. Geppert filed a motion to depose pursuant to Rule 74. On August 13, 2021, respondent filed a notice of objection to motion to depose pursuant to Rule 74. On September 18, 2020, petitioner Mr. Geppert filed a motion for recusal of judge.  On September 20, 2021, respondent filed a notice of objection to motion for recusal of judge. On September 23, 2020, petitioner Mr. Geppert filed a motion to remand. On July 20, 2021, petitioner Mr. Geppert filed a supplemental brief to motion to remand.  On September 20, 2021, respondent filed an objection to motion to remand, as supplemented.

“On September 24, 2020, petitioner Mr. Geppert filed a motion to declare IRS independent office of appeals unconstitutional as violating separation of powers and set aside IRS independent office of appeals actions. On August 12, 2021, petitioner Mr. Geppert filed a second supplemental brief to motion to declare IRS independent office of appeals unconstitutional as violating separation of powers and set aside IRS independent office of appeals actions. On October 15, 2021, respondent filed an objection to motion to declare IRS independent office of appeals unconstitutional as violating separation of powers and set aside IRS independent office of appeals actions,  as supplemented.” Order, at pp. 1-2. (Footnote omitted, but all it says is that citations to Rules are to Tax Court Rules.)

I need not point out that seeking remand to an administrative tribunal you are seeking to have declared unconstitutional four days later is a trifle odd.

Judge AIM has set a hearing for March 14 on the Louisville remote. I hope this gets livestreamed. It should be a doozy.

Judge Travis A. (“Tag”) Greaves deals with a bunch of “highly contestable” readings of clauses in a conservation easement deed in Malibu Valley Land, LLC, Spectrum Development, Inc., Tax Matters Partner, Docket No. 20442-19, filed 1/19/21.

We go coast to coast, as the Malibus stuck a $32 million easement on some 298 acres of CA. The big deal seems to be over the Malibus’ reservation of ” five ‘equestrian areas’, including ‘pipe corrals and other structures’ within the property without specification as to where those areas were to be located or how large the areas were to be (reserved equestrian rights). Only the exercise of the reserved equestrian rights required advance notice and approval by[501(c)(3) protector], but did not require this notice to be in writing.” Order, at p. 2. (Footnote omitted, but read the notice provision; exactly how do you mail oral notice?).

The usual improvements-in-or-out argy-bargy runs aground on what is the valuation date of  the proportionate share of extinguishment proceeds. The deed doesn’t state, which Judge Tag Greaves finds ambiguous, and so evidence is needed. Hence no summary J for IRS. Judge Tag Greaves proves once again that a lawyer who can’t find an ambiguity in any document needs to find another way to make a living.

Of course the Malibus are arguing Hewitt and Oakbrook, and has other and further arguments to slug poor old Reg. Section 1.170A-14(g)(6)(ii), but Judge Tag Greaves holds off on those. Cain’t hardly wait to see what those are.

IRS claims that the clauses requiring notice, 501(c)(3) to give notice before entering property to make sure conservation is going on, and Malibus to give notice before doing anything to the servient tenement (that’s the property encumbered by the easement, not a crash pad for extras from Fifty Shades of Grey) lets the Malibus get away with too much, but that doesn’t fly for summary J. No problem with notice by the 501(c)(3); they can enter and do their thing the minute they give notice. As for notice to the 501(c)(3), there’s a fact question whether whatever the Malibus could do would adversely impact the conservation.

Finally, the horsing around. Horseback riding is a permitted use, so pipe corrals are OK even if. not located in the deed, where housebuilding, land-swapping, and Swiss cheesing aren’t.

No summary J, but IRS don’t look so good in this horserace.

For most of us, which legal paths we trod over the years were determined by chance or inclination quite early in our careers; as the specialist superseded the generalist we most of us stuck to the well-trodden paths.

So I am sure CSTJ Lewis (“That Man Sure Can Spell!”) Carluzzo, whose career began as clerk to a State Court judge before migrating to distinguished roles at IRS, never expected the grist that came to his judicial mill would include the psychodrama and histrionics associated with divorce court.

But today Joseph Francis Farmer, Docket No. 1117-20S, filed 1/19/21, provides that. Joe objects to loved-once’s innocent spousery.

Except.

When IRS hit Joe and loved-once with SNODs for the two (count ’em, two) years at issue, they never petitioned. And the deficiencies concerned Joe’s unreporteds, nothing for loved-once. And the AZ divorce court decree said tax for Year One Joe and loved-once “…’shall abide by federal jurisdiction due to [petitioner’s former spouse] claiming innocent spouse.’ According to the decree, along with many other provisions that it includes, petitioner and his former spouse ‘reached a full agreement on the issues.'” Transcript, at pp. 4-5.

Yeah, roger that, says STJ Lew. “The position advanced by petitioner in this case, and his presentation at trial suggests that the divorce proceedings and his relationship with his former spouse were less than cordial.” Transcript, at p. 5. I can almost hear CSTJ Lew’s sigh, as he had to try this mess, with Joe pro se (natch).

Joe says he never got loved-once’s Form 8857 application for innocent spousery, but CSTJ Lew gleans from Joe’s testimony that he sure would have done. So Joe applied his own self, IRS’ innocent spousers said negatory, these were all Joe’s items, so Joe petitions.

CSTJ Lew gives us a really good rundown on the three (count ’em, three) varieties of innocent spousery. Useful checklist for the practitioner, at pp. 6-9.

But it availeth Joe naught.

“Although petitioner did not expressly concede that he is not entitled to section 6015 relief for either year in issue, at trial he did not dispute any of the facts relied upon by respondent in the denial of his requests for section 6015 relief, and he did not argue that the Court should allow him the relief that respondent denied. Instead, he challenged the section 6015 relief that respondent has already allowed to his former spouse. According to petitioner, for various reasons including the lack of opportunity to challenge her request at the administrative level, it would be unfair to allow his former spouse to escape the joint and several liability that resulted from assessments made on the basis of the joint Federal income tax returns and subsequently determined deficiencies. Apparently, he would not consider it “unfair” to hold his former spouse responsible for the Federal income taxes attributable to his income, the technical consequences that result from the filing of a joint return, notwithstanding.” Transcript, at pp. 9-10.

CSTJ Lew’s forbearing nature shines through.

“Domestic disputes can have a tendency to blur reason, and we suspect that, at least in part, influenced petitioner’s approach to the situation he has found himself in with respect to his income tax liabilities for the years at issue and the position he has taken in this case.” Transcript, at pp. 10-11.

CSTJ Lew gently man’splains to Joe that he’s not getting anywhere.

“… as we explained at trial, although we expect the explanation was not well-received, the Court is without authority to reverse or adjust the section 6015 relief respondent allowed to his former spouse.” Transcript, at p. 11.

Great speller, learned jurist, and master of understatement, that’s CSTJ Lew.

What have Erin M. Collins, NTA, and Francisa Fontanez, Docket No. 10154-21, filed 1/18/21, in common? Erin M. is the National Taxpayer Advocate, whose Purple Book, issued 1/14/21, mentions the issue that beset Francisa, whose untimely petition from a SNOD touches upon an issue that Erin M. also finds compelling.

Telling Francisa’s tale is Ch J Maurice B (“Mighty Mo”) Foley. Francisa is three (count ’em, three) weeks late with her petition. IRS shows up with dated SNOD and PS3877 showing last known address same as on petition, seeks and gets summary J tossing Francisa.

But Francisa wanted something else., and thereby hangs the cliché.

“Petitioner’s Objection does not deny the jurisdictional allegations set forth in respondent’s Motion to Dismiss; rather, the Objection is generally directed toward requesting that the Court send petitioner a tax refund or stimulus payment to which she believes she is entitled.” Order, at p. 3.

Now of course pore l’il ole Tax Court has no jurisdiction over refunds, and stimuli are a far remove from The Glasshouse That Vic Built.

But I’ll let Erin M., whose role in preparing Purple Book I have named the Annual Weep, the equivalent of Niobe, or Rachel getting the Jeremiah 31:15 treatment, tell her story.

“Under current law, taxpayers who owe tax and wish to litigate a dispute with the IRS must go to the U.S. Tax Court, while taxpayers who have paid their tax and are seeking a refund must file suit in a U.S. district court or the U.S. Court of Federal Claims. Although this dichotomy between deficiency cases and refund cases has existed for decades, we recommend Congress give all taxpayers the option to litigate their tax disputes in the U.S. Tax Court. Due to the tax expertise of its judges, the Tax Court is often better equipped to consider tax controversies than other courts. It is also more accessible to less knowledgeable and unrepresented taxpayers than other courts because it uses informal procedures, particularly in certain disputes that do not exceed $50,000 for one tax year or period.” Purple Book, 2021, Introduction at p. vii.

My colleague Peter Reilly, CPA, picked up on this, and we completely agree.

Moreover, were only a refund and not a deficiency or other collection matter at issue, I submit there is no need for the 90-day cutoff; there is no automatic stay on collection, as there is with a petition from a Section 6213 SNOD or a Section 6330 levy CDP. Myers equitable tolling should be in play.

All of us who were lucky to have as a colleague and a mentor Joel E. Miller, Esq., will mourn him now and miss him always.

We are only tall because we stand on the shoulders of giants.

The foregoing is a lament from a fictional real estate lawyer many years ago, when Congress rearranged our national holidays to give citizens three-day holiday weekends, to avoid the disruptions caused by midweek or weekend celebrations of national figures. G. Washington and A. Lincoln suffered a hostile merger in the process, but Thanksgiving and Christmas survived.

So today Dr Martin Luther King, Jr., is commemorated, although he was born on January 15.

Wherefore, The Glasshouse in the District of Columbia, locked down for COVID, is doubly locked today, invoking Rule 25(a)(2),(b).

In consequence whereof, I regret to inform my readers that I, too, am out of action today.

No, not Chuck Barris’ 1965 creation; Judge David Gustafson does not deal with such whimsicalities. Today he has a dubious date on two dubious documents, and needs more info to decide whether to bounce Richard Lipsky, Docket No. 5531-21L, filed 1/14/22.

Rich is fighting TFRP. IRS claims his mailed protest is four days late and a lot more than four dollars short.  But the Letter 1153 opportunity-to-contest bears either a “sloppy handwritten date of 8/8/2019” as allegedly mailed to Rich (Order, at p. 2), or no date at all, as faxed 8/13/19 to Rich’s representative. And of course which date matters for the sixty (count ’em, sixty) day cutoff to protest a TFRP.

IRS’ counsel makes a rookie error. “The declarant certifying the exhibits is the Commissioner’s counsel in this case, not the Revenue Officer…whose name appears on the Letter 1153 and who was apparently responsible to prepare it and have it mailed (nor even the settlement officer at Appeals who wrote in his case notes that the letter was ‘dated 08-08-2019′). That is, the Commissioner does not authenticate the handwritten date by anyone who could claim personal knowledge of the letter’s preparation.” Order, at p. 3 (Name omitted).

I remember, from long-ago days, my elders and betters ding, dinging into my youthful ears that “an affidavit from an attorney with no personal knowledge of the matters therein set forth is worthless.” It could be, however, that counsel’s certification was merely a table of contents and transmittal note of the attachments to the motion, and averred nothing more than “this is what Appeals handed me.” Of course, there should have been an affidavit (declaration) from the RO authenticating preparation and mailing procedures. But Monday morning quarterback is such an easy position to play.

Howbeit, we got an admin record with two (count ’em, two) versions of Letter 1153, and they don’t agree. And the sixty-day cutoff in the Letter 1153 is an “administratively imposed deadline.” Order, at p. 3. It isn’t statutory or regulatory, so equitable tolling isn’t necessary. If Rich is four days late, how is IRS hurt?

As usual, IRS wants summary J tossing Rich. Sure, Rich gets every favorable inference as nonmovant, so Judge Gustafson could just toss the motion.

Except.

“We might therefore simply deny the motion for summary judgment, but to do so would hardly advance the case. It may be that the Commissioner can make a showing of the actual ‘date of’ the Letter 1153; and it may be that he can demonstrate that it was not an abuse of discretion to hold Mr. Lipsky to the 60-day deadline stated in the letter. If so, then summary judgment may be a useful means for presenting the issues in this case.” Order, at p. 3.

Trust Judge Gustafson: tossing the motion kicks the cliché down the road, but it doesn’t make the case go away, or resolve anything for anybody.

Rich hasn’t spoken to IRS, and he’d best get with the program. Let Rich and IRS’ counsel confabulate, and let Rich “disclose any information that he has (such as the original Letter 1153) that bears on the ‘date of’ that letter. If the parties can stipulate the fact of the date (if any) that appeared on the original Letter 1153, then they should do so.” Order, at p. 3.

So in two weeks’ time, let IRS either move to supplement its motion for summary J, or else remand to Appeals to hear Rich’s bœuf (nudge nudge, wink wink).

This is why, among other things, I am a Judge David Gustafson fan.

The old Tax Court style book is going out of style. Its successor is here. There follows the dish.

The Tax Court recently modified the format, citation, and style used for all opinions and orders. A new Citation and Style Manual is posted on the Court’s website under Orders & Opinions/Citation and Style Manual. During the transition period, some opinions and orders will be issued under the pre-2022 format, citation, and style rules.

What is standard operating procedure for many taxpayers and their preparers creates an alleged lacuna in Boss Hossery, as today Judge Albert G (“Scholar Al”) Lauber exorcises yet another Chaighoul in Long Branch Land, LLC, Big Escambia Ventures, LLC, Tax Matters Partner, T.C. Memo. 2022-2, filed 1/13/21.

While the Long Branches were being audited, but long before a word about chops was breathed in their direction, the RA’s Boss Hoss Ms M’s commission was due for expiration. The then acting territory manager extended Ms M’s commission a couple weeks (hi, Judge Holmes) prior to the stated expiry. Three (count ’em, three) days later, the ATM was replaced, and her successor, Mr D, discovering that his predecessor had notified the troops of Ms M’s extension, but hadn’t filed Form 11247 [sic], did so after the expiry date, confirming Ms M’s extension as Boss Hoss. Ms M signed off on the chops after her extension.

The Long Branches, ably represented by one of my colleagues from the Upper West Side of this Minor Offshore Island, claims lbw, namely and to wit, that Ms M wasn’t Boss Hoss because the Form 11247 [sic] was too late.

Judge Holmes may well be having a wee giggle over the silt stirred by Chai and Graev.

Judge Scholar Al isn’t giggling.

“Although Ms. M’s appointment was initially set to expire on July 7, 2018, the IRS extended her appointment to September 30, 2018. Ms. B, the then-acting territory manager, communicated that decision…on June 22, 2018. Acknowledging Ms. B’s action, petitioner asserts that she ‘did not have authority to appoint M . . . for a period that was to commence after B’s authority to serve as Acting Territory Manager had expired [on June 23, 2018].’ But Ms. M’s appointment did not ‘commence’ after Ms. B stepped aside. Ms. M was already serving… and her period of service was simply extended to the end of the fiscal year.” T. C. Memo. 2022-2, at p. 4.(Names omitted).

The Long Branches claim the Form 11247 [sic] was an attempt to paper over Ms M’s non-Boss Hoss status.

“Petitioner relies heavily on the Form 10247 that Mr. D prepared on August 7, 2018, confirming Ms. M’s appointment through September 30, 2018. Petitioner argues that Mr. D’s completion of this form reflects an ‘effort to cure unauthorized action by Government employees through retroactive delegations of authority.’ But Mr. D did no such thing. He simply memorialized Ms. B’s June 22 delegation on Form 10247, thereby confirming that Ms. M had served, and would continue to serve, as… acting manager through September 30, 2018.” T. C. Memo. 2022-2, at p. 5 (Footnote omitted).

And the gov’t’s best friend, the presumption of regularity, comes to IRS’ aid. Governmental acts are presumed regular, and the Long Branches can’t prove otherwise.

“Indeed, if Ms. M lacked authority to serve as acting team manager, then [the RA] would have had no manager for at least a month. Congress enacted section 6751(b) ‘to prevent IRS agents from threatening unjustified penalties to encourage taxpayers to settle.’ Chai v. Commissioner, 851 F.3d 190, 219 (2d Cir. 2017), aff’g in part, rev’g in part T.C. Memo. 2015 -42. Without Ms. M at the helm, all members of [RA’s team] (on petitioner’s theory) would have been compelled to assert penalties on their own (and violate the statute) or cease work indefinitely (and needlessly prolong the examination). We doubt that Congress wished to create this sort of dilemma. Cf. S. Rep. No. 105-174, at 65 (1998), 1998-3 C.B. 537, 601 (stating that proper supervision would ensure that IRS agents assert penalties ‘where appropriate’).” T. C. Memo. 2022-2, at p. 6.

And where would a Boss Hoss case be without that trusty hapax legomenon, “immediate supervisor,” a term neither defined in, or elsewhere met within, Title 26 USC? Ms M oversaw the RA’s work on the audit; whether she was a “manager” en titre is nothing to the point. She was his immediate supervisor throughout the audit, and approved the chops.

I give my colleague a well-earned Taishoff “Good Try, First Class.”

Edited to add, 1/14/21: After patient, unremunerated toil, I have sorted out the Form 10247-11247 enumeration. The right number is 10247. See IRM 1.4.50.3.1.4 (08-11-2021).

I wasn’t wrong back in September, 2020, when I awarded Judge Christian N. (“Speedy”) Weiler that cognomen. Today he gives us an off-the-bencher that is as short and swift as any, Teresa G. Murphy, Docket No. 13970-19, filed 1/13/21.

Teresa’s been in Tax Court before on the very same issue, and lost 2019 T. C. Sum. Op. 32, filed 10/15/19, which I didn’t blog. It involved the Section 86 Social Security Retirement vs SSDI vs State or employer disability payments.

So does this case, but for a different year, wherefore Judge Speedy Weiler tosses Teresa again with a couple sentences summary (hi, Judge Holmes) of the issue.

IRS wants Section 6673 frivolity-delay chops. Judge Speedy Weiler says no, but he doesn’t tell us why. Was it just because, though Teresa had tried the same argument in another year and lost, she had not been warned by Judge Nega?

I wish Judge Speedy Weiler had given us some insight into what earns Section 6673 frivolity chops.

I quote Judge Buch in Waltner 2014 T. C. Memo. 35, filed 10/27/14: “Judicial opinions serve many purposes: they assist attorneys in advising clients and preparing cases; they provide the lower court’s rationale when the appellate court must evaluate its decision; they inform the public of the court’s analysis; and they establish clear and articulate rules for the future.” 2014 T. C. Memo. 35, at pp. 24-25. (Footnote omitted).

I don’t expect law review articles in off-the-benchers, but a few words why no chops for Teresa would be enlightening.