It’s almost eight (count ’em, eight) years to the day since I reported on a truncated interview with a TIGTA Deputy IG. I know it’s been a while, so see my blogpost “Another Whistleblower Gets Blown,” 8/30/13. And I’ll save you the trouble of clicking the link.

What I asked was “why TIGTA didn’t deal with the unending stonewalling by the Whistleblower Office, which seems to spend its waking hours denying claims when they’re not claiming that they haven’t determined anything. I cannot disclose his reply, here or elsewhere, as I asked informally.” I wish I could display the body language my question evoked, but I cannot, as I had not identified myself as a journo.

Howbeit, if TIGTA needs a new project, they can be sure that the Ogden Sunseteers are “consuming miles of red tape in the correctest forms of activity,” as another Nobel laureate put it. And accomplishing…well, take a look at Wai-Cheung Wilson Chow and Deanne Chow, 2021 T. C. Memo. 106, filed 9/1/21.*

The Chows whistled their former landlord, who, they said, only paid tax on the one building wherein the Chows rented, but boasted to them that she owned others, which she rented on a cash-only basis, paying no tax. The Chows attached to their Form 211 “a list of possible aliases used by the target taxpayer, a list of 50 addresses possibly associated with the target, and the identity of a possible relative of the target and that person’s associated addresses. The Chows obtained most of this information from internet research. From this research, they surmised that the target hides her property ownership from the IRS by purchasing properties in cash and registering them under various names, trusts, and companies.” 2021 T. C. Memo. 106, at p. 3.

Well, confronted with this, and mindful of Lacey (see my blogpost “The Whistleblower Office – Blown,” 11/25/19), the OS bucked the Chows’ materials to an SBSE classifier, who checked IRS’ databases and bounced the Chows as not credible.

“As the basis for this recommendation, the classifier stated that the target’s tax filings indicated income from one rental property and the database revealed that the target owned only one property. The SBSE classifier concluded that the claim provided no specific or credible information regarding Federal tax noncompliance.” 2021 T. C. Memo. 106, at p. 4.

Exactly what the SBSE classifier expected the target’s tax filings to show, except that the target filed for only one property, I cannot divine.

Need I point out that, if the Chows are correct in any particular, none of the target’s subterfuges will show up on any IRS database? The entire point is that target wasn’t filing for other properties. It might have been well to see who, if anyone, was filing for one or two of the properties on the Chows’ list, and, if they were filing, what, if anything, were they filing.

Looking on the radar for that which flies below the radar rarely if ever produces a worthwhile result.

So Judge Buch tosses the Chows.

But in the words of anther Nobel Laureate, “the answer, my friend, is blowin’ in the wind.”

*Wai-Cheung Wilson Chow 2021 T C Memo 106 9 1 21

I’m sure Denise Sadjian Curcio loudly shouted the title hereof, as the Wildcats’ LITC got her Section 6015(f) innocent spousery from STJ Daniel A (“Yuda”) Guy, without even so much as a tiptoe, much less a trudge, through Rev. Proc. 2013-34, 2013-43 I.R.B. 397, modifying and superseding Rev. Proc. 2003-61, 2003-2 C.B. 296.

Denise may be happy. Kenneth, I doubt not, may take a different view, as he’s left on the hook for $9K plus chops. Turns out a $9K credit elect sat beyond the pull date, as the return claiming same was filed beyond the three-year Section 6514 lookback.

Neither Denise nor Kenneth were particularly good money managers, but Denise went through a $2 million PI settlement, thus claiming poverty. True, she was badly hurt inn a wreck and got the minor children in the divorce.

I don’t want to knock the Villanova Widger School of Law’s LITC crew, but IRS folded their denial of Section 6015(f) equity at the courtroom door, and Kenneth (pro se, of course) was hardly a formidable adversary. He stiped pre-trial that he’d be responsible for everything if Denise wins this case, or if he wins, they’d split the bill, and this gets into the record. Comment is superfluous.

“It is worth noting here that in preparing this case for trial, respondent reconsidered and concluded that petitioner’s claim for relief should be granted. Additionally, when given the chance, intervenor had little to offer the Court in support of his opposition to petitioner’s claim for relief. Intervenor’s primary complaint is that petitioner could have used funds in the settlement account to pay the couple’s tax liability for the year in issue when she first learned about the underpayment in early 2018.” 2021 T. C. Sum. Op. 31, at pp. 13-14.

Denise wins.

I point out that Denise started with a $2 million settlement, and after expenses and set-asides, still had $1 million, yet “…the home that petitioner purchased in 2017 is encumbered by a home equity line of credit and is subject to a lien attributable to unpaid property tax…Petitioner owes $160,000 to her cousin and $16,000 to her divorce attorney. In addition petitioner has outstanding credit card debt totaling approximately $100,000.” 2021 T. C. Sum. Op. 31, at p. 9.

Btw, the home was purchased for $605K out of the net settlement proceeds. 2021 T. C. Sum. Op. 31, at p. 5.

And Denise apparently took $70K of proceeds to engage in some kind of business, as to which nothing was heard thereafter. 2021 T. C. Sum. Op. 31, at p. 5, at which STJ Yuda comments “(T)he record does not include any additional information about the success or failure of this enterprise.”

How do you spell dissipation of assets? Why did IRS fold? And Denise apparently qualified for low income tax clinic treatment, having blown through a million bucks.

Of course, Kenneth gave the case away, and can’t appeal. But if this is equity, I’ll be dipped.

For the record, the case is Denise Sadjian Curcio, Petitioner, and Kenneth Curcio, Intervenor, 2021 T.C. Sum. Op. 31, filed 8/31/21.*

*CURCIO 2021 T C Sum Op 31 8 31 21

Edited to add, 9/1/21: As best I, a mere old-time, beaten-up, beaten-down, single-shingle dirt lawyer “of limited experience and mediocre qualifications” can discern, Denise blew through $1 million net from the settlement: she owes another $100K credit card debt, $160K to a cousin who lent her money (use of proceeds unknown), $16K to her divorce lawyer, and an undisclosed amount in real estate taxes and home equity line of credit on her MacMansion. Plus put $70K into a business, the fate of which is unknown. This is low income? This is not dissipation of assets? I won’t mention that a high-low settlement agreement got into the record of a trial, to the prejudice of a pro se. It’s been almost five (count ’em, five) years since I said this (and turns out I was right back then): If ever an opinion needed reargument, it’s 2021 T. C. Sum. Op. 31.

Lose Your CNC

Judge Christian N. (“Speedy”) Weiler has a hard lesson for Sherrie L. Webb, 2021 T. C. Memo. 105, filed 8/31/21*. Sherrie filed for a CDP off a NITL, asking for abatement of penalty, reasonable cause for the add-on for failure to pay timely, and eligibility for collection alternative. But her representative did not request OIC for the chop or add-on at Appeals, and only went for CNC.

Sherrie fired her representative (a bad sign), and didn’t provide some information the AO requested. So the AO bounced Sherrie, figuring per the guidelines that Sherrie could pay $56 per month, based on a recalculation of her monthly withholding, and dropping Sherrie’s 401(k) contribution.

Sherrie petitions. IRS moves for summary J, and Judge Speedy Weiler finds he can go outside the administrative record as Sherrie petitioned from FL, which is in 11 Cir. 11 Cir hasn’t limited Appeals review to admin record.

Mox nix, he decides.

“The only issue petitioner now raises is whether her account should have been placed into CNC status by Appeals. However, even after specific requests from [AO] petitioner did not provide the supporting documentation [AO] needed to be able to grant such a collection alternative. Furthermore, petitioner conceded that she still contributes to a section 401(k) account. [AO] adhered to the IRM in determining that contributions to voluntary retirement plans (including section 401(k) accounts) are not necessary expenses for purposes of CNC status based on financial hardship. See IRM pt. 5.15.1.28(2) (Aug. 29, 2018). Accordingly, we are compelled to determine that [AO] has not abused her discretion as to her consideration of the CNC issue petitioner raised.” 2021 T. C. Memo. 105, at pp. 9-10. (Name, citation and footnotes omitted, but they say Sherrie raised the prospect that her rent might go up in response to the summary J motion, and that fails because she could have raised it at Appeals and didn’t; anyway, Appeals still has jurisdiction and Sherrie can go back there if her situation worsens, but if Appeals tosses her she gets no second shot at Tax Court).

I’m a great fan of 401(k)s, and contributed to them when I was employed. All, or almost all, financial advisers are fans as well. 401(k)s are among the very few places where your gain is compounded without the tax siphon. But if you want CNC, the 401(k) contribution must go on hold.

*Sherrie L Webb 2021 T C Memo 105 8 31 21

No, I am not, and I’m sure Ch J Maurice B (“Mighty Mo”) Foley is not, snobbish or given to lording it over the non-admitted. Whether entering the ranks of the Second Street Squad (nonpolitical, of course) automatically or the hard way, we are all bound to serve with honor and fidelity.

But the horde of non-admitteds filing petitions with no notion of statutes or rules is fatiguing. They ignore the website except to download the Form 2 petition package and slam it in. Not a working day passes without at least half a dozen admonitions from Ch J Mighty Mo to such as they to join up.

As I said hereinabove, it gets so fatiguing that it all becomes a blur. By way of illustration of the foregoing, here’s Marjorie K. Costello, Docket No. 17826-21, filed 8/31/21*. And unlike most of these, Marjorie signed the petition her own self.

“However, it appears that petitioner’s non-attorney representative, David M. Daggett, who is not admitted to practice before this Court is referred to as petitioner’s non-attorney repredentative [sic]. The United States Tax Court, which is separate and independent from the IRS, has certain requirements that must be met before an individual can be recognized as representing petitioners before the Court. The Court has prepared Q&A’s on the subject ‘Representing a Taxpayer Before the U.S. Tax Court’. The Court also encourages practitioners and nonattorneys seeking admission to practice before the Court to consult “Guidance for Practitioners” on the Court’s website at http://www.ustaxcourt.gov/practitioners.html. At this juncture, James B. Schmidt will not be associated with this case and we encourage petitioner’s representative to review the Court’s admissions requirements.” Order, at p. 1.

Ch J Mighty Mo orders the Clerk to serve this order on Mr. Schmidt.

Daggett – Schmidt. After a while it’s all a blur.

*Marjorie K Costello 17826-21 8 31 21

No, I haven’t taken up weather reporting, however compelling the news from NOLA. This is the latest on the surge of petitions to US Tax Court. As at 3:07 p.m., EDT, the latest docket number I can find is 20706-21S, filed 6/9/21, or about one week shy of three (count ’em, three) months ago. Might it not be an exaggeration to state that the stack of unprocessed petitions, when added to those already logged in, will far exceed the expected 24K + anticipated in my blogpost “Premature,” 7/23/21?

Might it not be reckless speculation to suggest the number of petitions filed might approach, if not exceed, 35,000 total for calendar 2021?

In the midst of which deluge, we have today Austin Leroy Bayne, Docket No. 2680-20S, filed 8/30/21*. Austin Leroy petitioned last year, and then did nothing, at least so far as Judge Gale is able to discern from the record.

IRS moves to toss Austin Leroy for want of prosecution. Judge Gale fires the following salvo.

“Petitioner’s failure to appear for trial and failure to comply with the terms of the Standing Pretrial Order requiring adequate pretrial preparation have prejudiced respondent by causing him to expend resources that could have been expended elsewhere. Moreover, petitioner’s failure to appear for trial and failure to comply with the Standing Pretrial Order have hindered the Court’s management of its docket. None of petitioner’s failures are excused. We have balanced petitioner’s interest in being heard, which has been diminished by his failure to meaningfully participate in these proceedings, against the Court’s responsibility to manage its docket, and we have concluded that dismissal is warranted.” Order, at p. 4. (Copious citation of precedent omitted.)

OK, great. Austin Leroy is out, even if it took Judge Gale four pages to get there, leaving only twenty-some thousand petitions to go.

Not quite. As the midnight telehucksters say “But wait! There’s more!”

IRS wants chops and add-ons, with BoP and BProd at no extra charge.

“Respondent has not attempted to meet his burden of production with respect to the additions to tax determined in the notice of deficiency. He instead argues that he has no burden of production as to the additions to tax because the Petition fails to put them at issue. We disagree. As we have previously explained, ‘[a]ll claims in a petition should be broadly construed so as to do substantial justice, and a petition filed by a pro se litigant should be liberally construed. The assignments of error in the Petition, which petitioner filed pro se, include the statement, ‘I don’t think it’s fair to wait 5 years then slap someone with all these charges and penal[]ties.’ That statement, construed liberally, is sufficient to put respondent on notice that petitioner disagrees with respondent’s determination that he is liable for ‘charges and penalties’, i.e., additions to tax, for the year at issue. We accordingly must determine whether respondent has satisfied his burden of production with respect to each of the additions to tax determined in the notice of deficiency.” Order, at pp. 9-10. (Citations omitted).

Judge Gale gives a great review of all thereof. IRS gets late-filing, but not late payment (Austin Leroy had enough uncontested withholding credits on his late-filed 1040A to satisfy, and IRS produced no SFR to say otherwise). And IRS has no return to show what Austin Leroy’s previous year’s tax was, so no ES-nonfiling add-on.

Austin Leroy sure got his day in court, even if he wasn’t there. All thirteen pages’ worth.

*Austin Leroy Bayne 2680-20S 8 30 21

I have never heard Ch J Maurice B (“Mighty Mo”) Foley sing, but I’m sure he’d give a great rendition of the great folksong above-referred-to. It epitomizes His Honor’s view of the United States Tax Court.

This broad view is more particularly bounded and described in Administrative Order 2021-1, 8/27/21.

“The United States Tax Court, headquartered in Washington, D.C., is a Court of nationwide jurisdiction and conducts trial sessions in 74 cities across the country. Petitioners generally select a designated trial session city for their trial location. The Court’s default is to conduct in-person trials.” Administrative Order 2021-1, at p. 1.

The AO does permit Zoomietrials and hearings, and the rules, guidelines, and protocols are set forth therein. Practitioners, read and heed. Note especially the 31-day cutoff before the first day of the trial session where you want to Zoom; that’s calendar call Day One, even if you want to set your trial for a later date and time certain.

But Ch J Mighty Mo’s judicial panel must be prepared. They’ll be “wanderin’ early and wanderin’ late, New York City to the Golden Gate.”

It’s a verb meaning attracting and holding the interest of an observer, and CFM Insurance, Inc., Docket No. 10703-19, filed 8/27/21*, certainly does that for IRS. IRS claims CFM is another microcaptive phony that shifts cash but no risk.

Judge Mark V. Holmes has a doubleplay in this order, until IRS drops the chops, thus mooting CFM’s discovery request relating to whether an attorney in Office of Chief Counsel was the real Boss Hoss, even though not the RA’s immediate supervisor. For more, see my blogpost “Call Me Mr. Silt,” 6/16/21.

But the insurance broker who ran the CFM operation and whom I’ll designate as AjG was hit with a third-party subpoena, ranging far and wide over AJG’s role in setting up and running CFM through AJG’s subsidiary Artex. My readers with long memories will remember Artex’s appearance in my blogpost “Discovered Check,” 11/30/15, part of the saga of Caylor Land & Development, Inc., to which Judge Holmes cites at p. 3 of his Order.

Spoiler alert: see my blogpost “My Kind of Insurance Company,” 3/10/21, for the dénoument of the Caylor saga.

AJG says IRS is sailing on a fishing expedition, that compliance with the subpoena is unduly burdensome, and that IRS is only entitled to a lot less than they’re asking for.

Nope, says Judge Holmes.

“The Commissioner’s theory appears to be that CFM didn’t have a ‘substantial purpose (apart from federal income tax effects) for entering into the captive insurance transaction,’ and that it didn’t act in good faith. Comparing the captive insurance that CFM provided to the more traditional commercial insurance that {AJG] provided would likely shed light on any value CFM added to the [insured]’s stores, and therefore its purpose. And examining the [insured]’s stores’ insurance arrangements in the years before CFM’s formation could do the same. This kind of compare-and-contrast analysis is one that we’ve done in every other microcaptive-insurance case we’ve had. Because part of the test for finding an arrangement to be ‘insurance’ is ‘whether an arrangement looks like commonly accepted notions of insurance,’ Caylor, slip op. at 10, a comparison of [insured]’s insurance purchases from AJG slightly before and during the years at issue is therefore relevant, and we think that the Commissioner’s first and second requests for information are reasonably tailored to discover them.

“The Commissioner’s third request seeks communications between AJG and [insured]’s, Mr. P, CFM, and JI (CFO of [insured]) between August 26 and the date the subpoena was received (i.e., a few days to a few weeks later). This is a request aimed at getting information relating to this phase of the litigation. It may be aimed at impeachment evidence or evidence of preparation of a response to the subpoena. It’s not overly burdensome, and AJG may of course respond with a privilege log (as the subpoena states) if it or CFM wants to invoke an exemption to discovery.” Order, at p. 4. (Names and citations omitted, but Judge Holmes cites to all the usual suspects I’ve blogged).

Prospect of an appeal by AJG? They’ve got a heavy-duty white shoe firm representing them. Judge Holmes, by calling their counsel “Mr.,” rather than “Esq.,” you may have provoked them.

*CFM Insurance 10703-19 8 27 21

The punchline from a horrific but hilarious example of schadenfreude (the full text of which is manifestly unfit for a blog like mine, intended for family reading), tells the story of Judge David Gustafson, obliging as always, picking out the magic word from Indu Rawat’s motion for reconsideration, in Indu Rawat, Docket No. 15340-16, filed 8/26/21^.

Y’all remember NRA Indu, right? No, she’s not a gunslinger, she’s a Non Resident Alien, who sold her US partnership interest for telephone numbers, and maybe agreed that she had to recognize the post-sale gain on partnership inventory as ordinary income to the tune of $6.25 million. No? Then see my blogpost “Che Se Firms é Perdutto – Part Deux,” 7/20/21.

Indu signed the 870-LT that locked her into recognizing the ordinary gain per Section 751. But of course Indu sold before 11/27/17, so the amendment to Section 864(c)(8), mandating Section 751 pickup by NRAs selling onshore partnership interests doesn’t apply.

Judge Gustafson: “…Ms. Rawat now evidently abandons her critique of the Commissioner’s documents and now agrees (though only arguendo) that the Form 870-LT includes both parts I and II, the Form 886-A, and its ‘Schedule of Adjustments’; and she now abandons her contention that she is ‘not [bound] to any partner-level determinations’.” Order, at p. 3.

Huh? Did Indu surrender to IRS 100%?

Negatory, good buddy, but it takes Judge Gustafson to parse out what Indu’s trusty attorneys are driving at.

“…she asks us to reconsider the meaning and effect of the Form 870-LT in requiring  her to ‘recognize ordinary income in the amount of $6,523,176.’ She contends that this ‘recogni[tion]’ provision in the closing agreement does not determine ‘taxable income’ and does not preclude her contention that the sourcing rules relieve her from taxation on that amount. We think that this contention was unclear in her reply, but we acknowledge
that she made the contention and that we gave it insufficient attention.” Order, at p. 4 (Emphasis by the Court).

The magic word is “taxable.”

So let IRS and Indu dish on their viewpoints, and confabulate via Zoom or phoneathon about settlement.

I’m sure Indu’s trusty attorneys, whom I’ll here denominate as the capdale guys, are grateful.

*Inmdu Rawat 8 26 21

I’ve seen this many times over the last fifty-four (count ’em, fifty-four) years: a developer (usually taxed as a partnership, even if LLC) finds the property, and seeks financing. The lender wants return of capital, return on capital, and something extra, namely, viz., and to wit, a piece of the action, whether during operation or sale or both.

We call this piece of the action an equity kicker, and it’s either embedded in the mortgage, or, more likely, in a side agreement. Of course, we put in a load of jive about not creating a partnership, co-venture, or anything but a debtor-creditor relationship. Yeah, most affirmato, roger that.

Anyhow, that’s the deal with Progressive Life Insurance Company (PLI) that Alexander C. Deitch, et al., Docket  No. 21282-17, filed 8/25/21*, made. But the als were individual members with Alex of an LLC known as WTS. Wherefore, when WTS paid PLI $1 million and called it interest, IRS handed out SNODs to Alex and the als.

Judge David Gustafson man-‘splains: “This payment constituted 50% of the net proceeds of the sale of a commercial property as calculated pursuant to an ‘Additional Interest Agreement’ into which WTS and PLI had entered when PLI agreed to lend to WTS approximately $4.4 million for the purchase of the commercial property.” Order, at p. 1.

Now Alex and one of the als were the sole members of WTS, and, as they were both individuals, WTS was a small partnership for TEFRA purposes, therefore no need for FPAA, therefore straight to the individuals (the other al is the wife of the other member).

And there were facially-valid SNODs to Alex and the als, and timely petitions from both.

Except.

IRS argues in its pretrial brief that PLI and WTS were co-venturers, not borrower-lender, so whatever WTS paid PLI out of operations once the property was up and running were Section 707(c) guaranteed payments, and what PLI got on the sale was a distributive share of the sales proceeds.

So what?

So TEFRA. I’m sure my ultra-hip readers reacted as did Judge Gustafson (although Judge Gustafson gives us elegant language, somber reasoning, and copious citations). “Hey, if WTS and PLI are co-venturers, then they’re partners for tax purposes. While PLI is a C Corp and could qualify for the TEFRA small-partnership duck, WTS is a pass-through and not a disregarded (having two members), so WTS and PLI cannot duck TEFRA. And splitting operating profits and sales proceeds are clearly partnership items. So IRS must use TEFRA, but here no FPAA., so no Tax Court jurisdiction.”

Take a look at Jimastowlo Oil, LLC, more particularly bounded and described in my blogpost “Honor Your Partner,” 8/26/13.

So let IRS’ counsel report (a) whether TEFRA ousts Judge Gustafson of jurisdiction to decide IRS’ claim that the equity kicker payments are the result of a co-venture between WTS and PLI, and (b) if so, what else is there to decide?

And let Alex and the als reply.

Now I’ve said often enough that Judge David Gustafson is an obliging jurist. He’ll bring over his laptop and do your papers for you, bring Krispy Kremes and Mayorga with half-and-half to calendar call, and feed the parking meter while you wait. See my blogpost “Obliging? This Beats All,” 3/6/19. Then I said he won’t do your research for you. But here he’s written the memo for Alex’s trusty attorneys, the Lords Chamberlain.

*Alex Deitch 21282-17 8 25 21

We’ve met them many times in our practices. You know, the loveable rogue. Yeah, straight as a corkscrew, but there’s something about the dude.

Note: very rarely does a woman fall into this category; women eschew persiflage, are too direct. Ms. Elizabeth Holmes is intimidating, not ingratiating.

Anyway, Greg Podlucky is back today, and just two words in Judge Albert G (“Scholar Al”) Lauber’s stitching up of summary J precluding Greg from denying that he “fraudulently underpaid his tax for the 2005 tax year” brought even more than a grimace to my battered visage. I smiled, even got a wee bit teary, remembering times long ago. And the memories of those times brought a fleeting moment of fellow-feeling for Greg.

Then, of course, it dissipated.

The words? “The Government alleged that petitioner fabricated [Greg’s business]’ financial statements to induce lenders and investors to advance funds to the business. Petitioner during 2005 allegedly diverted more than $7 million of his ill-gotten gains to buy jewelry, model trains, and a mansion house.” Order, at p. 2. (Emphasis added).

Model trains, Judge? Have you ever opened the blue cardboard boxes of the first postwar American Flyer red coaches your Dad bought for you the last Christmas he was home? Have you ever set up the Hornby Mallard to run around the Christmas tree with two young and eager assistants? Ever set up the Märklin model of the railcar you rode from Ansbach to Steinach to visit your old Army buddy from boot camp?

If not, please accept my sincerest sympathies.

Model trains, indeed. Magic. A glimpse of Heaven.

Gregory J. Podlucky and Karla S. Podlucky, Docket No. 453-17, filed 8/24/21.*

*Gregory J Podlucky 453-17 8:24:21