I’ve blogged the lookback rules any number of times. Amr M. Mohsen, 2021 T. C. Memo. 99, filed 8/11/21, took fourteen (count ’em, fourteen) years to file his delinquent return. In the meantime, IRS gave Amr a SFR. AMR had timely asked for an extension to file for that year, and sent in $43K. IRS applied the payment to the tax Amr owed for that year, and sent the rest to excess collection.

Then Amr filed eleven (count ’em, eleven) years late in the same year, and wanted the $43K applied to the second late year, and the net amount refunded, as he didn’t owe for the first late year. He claims the check was a deposit in the nature of a cash bond.

Clear? Thought not.

Amr never noted on the check what he wanted.

Judge Kerrigan begins with the truism that Tax Court can apply a credit, if at all, if the credit “indubitably” exists. 2021 T. C. Memo. 99, at p. 9.

There isn’t. All Amr had was a claim for a credit. “At the time of petitioner’s CDP hearing…respondent had already denied his refund claim on several occasions. Petitioner has a mere claim of an overpayment for [first late year]. Accordingly, we lack jurisdiction to decide his claim for refund for a year that is not before us.” 2021 T. C. Memo. 99, at p. 10.

It gets worse.

“Even if we had jurisdiction, petitioner would not be entitled to a refund because he has failed to meet the threshold requirements for claiming a refund. Petitioner contends that his remittance of $43,000 in 2002 was a deposit in the nature of a cash bond. While section 6511 sets a period of limitation on claims for credit or refund of overpayments of tax, this period of limitation does not apply to a deposit in the nature of a cash bond. Rev. Proc. 84-58, 1984-2 C.B. 501, which has been superseded but was in effect for the year when petitioner mailed the check, states that a taxpayer may request the return of all or part of a deposit at any time before the Service is entitled to assess the tax. According to petitioner’s argument his refund claim was thus timely, and his remittance of $43,000 would be an available credit to apply towards his 2004 tax liability.

“Petitioner submitted the $43,000 check attached to a Form 4868. His remittance was a payment of tax and not a deposit in the nature of a cash bond. Accordingly, the period of limitation under section 6511 applies.” 2021 T. C. Memo. 99, at pp. 10-11. (Citation omitted).

And that’s the three-year lookback. But the three years began when Amr filed his return; the SFR isn’t a return for lookback purposes. And Amr paid thirteen years before he filed his late return.

Takeaway- Check out the current deposit rules before you make any payment. Or else, if you miss the lookback, look out!

Note I can’t link to the text of this opinion, because the Genius Baristas or the 18Fs or whoever is running this shambolic schemozzle called DAWSON has blocked the entire docket, notwithstanding this opinion was just published.

Alexander Bernard Wathen, Esq., 2021 T. C. Memo. 100, filed 8/11/21*, proves once again the truth of the old marching cadence. Alex is a BR practitioner with a lot of cases but no records of his own. Alex also has a discharged Chapter 13 plan of his own, which he claims means “res judicata, collateral estoppel, and judicial estoppel bar respondent from asserting these deficiencies, additions to tax, and penalties.” 2021 T. C. Memo. 100, at p. 2, footnote 2.

Unfortunately, Alex raises these arguments too late for Rule 121 or standing pretrial order, but Judge Pugh deals with them.

“…petitioner was granted a discharge of debts under 11 U.S.C. sec. 1328(a). The order of discharge noted that “[s]ome debts are not discharged” and listed as ‘[e]xamples of debts that are not discharged’ debts for taxes specified in 11 U.S.C. sec. 523(a)(1)(B). There is no indication that the IRS agreed to waive any of its rights with respect to tax debts excepted from discharge under title 11 of the United States Code (Bankruptcy Code).” 2021 T. C. Memo. 100, at p. 6.

Bankruptcy Court never dealt with, much less disposed of, the issues raised by the SNOD which IRS bestowed upon Alex.

If this sounds familiar, see my blogpost “Ain’t No Discharge On The Ground – Part Deux,” 3/28/19. Judge Pugh tipped off Alex on the trial.

Alex’s bankruptcy proceeding never determined what tax he owed, only that the plan proposed might pay some dischargeable debts. Bankruptcy Court never exercised its jurisdiction to determine Alex’s actual tax.

I will pass over Alex’s testimony on the trial. It’s not exactly what one likes to hear. See 2021 T. C. memo. 100, at p. 20, footnote 6.

*Alexander Bernard Wathen T. C. Memo. 2021-100

Truly, it’s a very ill wind that doesn’t blow somebody some good. The damage done by this pandemic needs no cataloging from me; I’m sure every one of my readers has their own account.

Today I find some hope, although obliquely. The Tax Court Request for Place of Trial, Form 5, with its built-in traps for the unwary, should be moved to the trash. The Zoomietrials have been going on since last summer, with no reported ill effects. Cases have been placed on nominally-geographical trial calendars for ease of administration, but the litigants can argue their motions and try their cases anywhere they can get reliable, secure internet connections. And VPN protocols have proven themselves.

Example of the traps aforesaid: Jason Edward Heggie, Docket No. 13076-21, filed 8/10/21. JE moves to change place of trial to Fresno, CA. A docket search shows trial was set for San Francisco, with the usual order stating that, as JE hadn’t picked any place, Ch J Maurice B (“Mighty Mo”) Foley would give him one at no extra charge. And JE could always move to change it. So he did.

But Fresno, CA, is strictly small-claimersville. And Jason didn’t elect small-claims treatment. Ch J Mighty Mo doesn’t say JE would qualify, but suggests JE might want to look at the Tax Court website and decide. The site says small claimers are held in fifteen (count ’em, fifteen) more cities than regular. So maybe it’s easier for JE to go to Fresno than San Francisco for calendar call and trial.

Except.

Location shouldn’t matter in the Zoomietrial age. Why must a petitioner (most of whom are unrepresented) exchange right of appeal for an easier commute?

The real considerations for going small should be getting evidence admitted (although most evidence can be stiped in), and a hope that, if, as the old saying has it, “hard cases make bad law” a judge will cut you more slack in a case that’s non-appealable and non-precedential, and that only Taishoff will notice.

In my real estate practicing days, it was an unceasing mantra: “It’s all about the numbers.” “How much are we talking about?” “What’s the bottom line?” “What’s the downside?”

Well, even a Cambridge-educated classicist like Judge Albert G (“Scholar Al”) Lauber reverts to the basic question in Adams Challenge (UK) Limited, Docket No. 4816-15, filed 8/9/21*. Y’all will recall the Adams Challengers, right? What, no?

The Adams Challengers never left well enough alone. Their job was to find extinct oil and gas wells on the US Outer Continental Shelf, decommission them and dig up hurricane-damaged detritus. Section 638 plays Laocoön with the Adams Challengers in the US tax web; see my blogpost “‘Related To,’ ‘In Connection With,’ “With Respect To”, 1/8/20.

Now all that’s left is what I left at the foot of my blogpost above-cited. “…any deductions or credits allowable to Challenge must await another day.” The Adams Challengers and IRS were working towards that end, when the Adams Challengers ask Judge Scholar Al to hold everything while they talk to the UK Competent Authority about a mutual agreement procedure.

A MAP here asks the UK taxing authorities to shield the Adams Challengers from a double whammy if they lose in Tax Court and have to pay US income tax; then the UK won’t tax the Adams Challengers twice.

The UK CA says they’ll confabulate with the US CA only if Judge Scholar Al stays the proceedings, or, if not, when any US decision becomes final, per Section 7481.

Judge Scholar Al says he won’t stay the proceedings.

Article 26 of the US-UK tax treaty says a national can go to their own CA within three (count ’em, three) years of assessment, or accepted closing agreement, or final resolution of litigation, including appeal.

“Petitioner declined to submit a competent authority request within three years of receiving the notice of deficiency…. Instead it opted to commence litigation in this Court, where its case has been pending for more than six years. In case like this–where the taxpayer initially chooses litigation over mutual agreement proceedings–the competent authority procedure will function most efficiently if the taxpayer pursues its litigation to a final decision under I.R.C. sec. 7481(a), i.e., to the point where ‘such [litigation] is finally resolved, including any appeal.’ IRS Announcement 2007-107.” Order, at p. 3.

The real question for the UK CA is whether the UK needs to do something for the Adams Challengers, if they don’t owe the US anything.

“Before affording such relief, the U.K. will presumably want to know whether petitioner actually is liable for U.S. tax, and to what extent. That determination will depend on the outcome of any appeal taken by petitioner from our ultimate decision in this case. The U.K. will have no need to consider petitioner’s request, at the expense of its revenue, if an appellate court reverses our decision.” Order, at p. 3.

Since the Adams Challengers claim to be in the home stretch working out the numbers, stopping now saves nobody anything.

“Resolution of the remaining (mainly factual) questions, combined with petitioner’s likely appeal of the legal issues to a final decision, will enable the U.S. and U.K. Competent Authorities to conduct any future mutual agreement proceeding with knowledge of what petitioner’s U.S. tax liability actually is. Petitioner will suffer no prejudice by exhausting its litigation remedies in this way, because it will have three years after our decision becomes final to seek Treaty relief.” Order, at p. 4.

So finish the numbers, guys, and get ready for the appeal.

*Adams Challenge UK 8 9 21

Back in May a year ago I cautioned that COVID-19 “is there for the long haul.” At the time, I noted that applications to take the examination for admission to Tax Court, formerly mandated to be paper, could be e-filed by special dispensation. See my blogpost “The Octavia Rules -Part Deux,” 5/12/20. So why not petitions from SNODs and NODs?

I was ignored, as usual.

Now the clichés have come home to roost. And Judge Albert G (“Scholar Al”) Lauber and his colleagues must deal with their droppings.

Adolfo Sandor Montero, Docket No. 7607-20, filed 8/9/21, is a techie and a top-class frivolite. He’s petitioning a SNOD, but his envelope has no legible postmark. IRS wants to toss Adolfo for lateness, but Adolfo isn’t alone, and for once he may have a valid issue.

Adolfo’s petition was filed 7/10/21. At least, that’s the date the flailing datestampers at The Glasshouse on Second Street impressed on Adolfo’s latest. Note that date.

“…respondent filed a Motion to Dismiss for Lack of Jurisdiction. Petitioner objected to that Motion, contending that his petition was timely under I.R.C. sec. 7508A(d). It provides taxpayers who are affected by a Federally declared disaster with a 60-day extension to comply with certain time-sensitive acts under the Code. Petitioner urges that this provision was triggered by Federal emergency declarations related to the COVID-19 pandemic; respondent disputes that proposition.”  Order, at pp. 1-2.

Y’all will recall the famous lockdown Press Release dated 3/18/20, wherein was revealed the COVID-19-precipitated doorslamming. And all y’all will surely remember Steve Mnuchin and the Treasury Munchkins holding a bunch time-sensitive filings in abeyance (hi, Judge Holmes). If not, see my blogpost “Le Quinzième Juillet,” 4/10/20, and the Grand Opening Press Release of 6/19/20.

Judge Scholar Al punts, and well he should.

“We will take respondent’s Motion to Dismiss under advisement. The proper application of section 7508A(d) in the context of the pandemic has been raised by several taxpayers. The Court will coordinate its disposition of motions implicating this issue in order to ensure consistent treatment.” Order, at p. 2.

We’ve got the statutory time limits on filing petitions from SNODs and NODs, because, as I have pointed out a number of times, filing a petition gives petitioner a TRO against collection. It’s like the Bankruptcy automatic stay. So IRS needs to know when they can go ahead and lien or grab. OTOH, the COVID-19 lockdown was imposed by the gov’t, and frustrated petitioners’ strict performance in time.

And the mail-and-remail tack taken by an announcement on the (now-obliterated, pre-DAWSON) Tax Court website (see my blogpost “Why?” 5/4/20) has no basis in statute, Rule, or anything else.

I never want to get political, but if certain legally-permissible acts can be stayed by a COVID-19 induced moratorium….

Just yesterday I noted that the Tax Court “public website,” whereon was to be found inter alia (as my already-on-their second Grey-Goose-G&T colleagues would say) the Request for Quotes which gave birth to DAWSON, had been obliterated. See my blogpost “Call and Response,” 8/5/21.

So it was. Except.

While the “public website” may be gone, the document itself isn’t. Check this out.

A source advises me that, at the advent of DAWSON, the entire database of the now-obliterated “public website,” namely, viz, and to wit, over a terabyte of data – nearly a million cases going back to the 1970s – from the now-extinct site, marched dry-shod, in an online Exodus, to the Promised Cyberland system quickly and accurately, the electrons parting to their left and to their right, whereupon the old “public website” was swallowed up.

Now that this event is eight months past, when will we see this treasure-trove released in searchable format, so that we can access it for research?

Btw, you can buy a pocket-sized harddrive that holds a terabyte of data from any of a number of reliable vendors for less than a Benjamin. So what’s the holdup?

I’m sure Ch J Maurice B (“Mighty Mo”) Foley is too young to remember Lenny Bruce, and the comedy sketch wherein appeared the title of this my sermonette. So I doubt Ch J Mighty Mo echoed Bruce’s words when he drafted his order in Joe Ibarra, 15065-21, filed 8/5/21.

I expect those of my readers who are old enough to remember qualify for Social Security or their national equivalent. But this isn’t Joe’s story, or Bruce’s.

We have another of the plethora of non-admitted representatives seeking to represent petitioners, armed with Forms 2848, or the State equivalent. I blogged this enough times before now not to repeat myself, but I will.

“Tax Court isn’t small claims court or village court or justice court. It has its statutes and its rules, and these are not to be ignored, however big-hearted the judge may be.” See my blogpost “A POA Is Not A Person,” 2/9/17.

So Joe is told to ratify the petition his own self, wet ink (preferably blue) and paper and all.

And Ms. Rebecca Warden gets her own copy of the order, with the admissions Q&As, at no extra charge.

Word to all non-admitted reps and agents: November 17 is coming upon us fast. Send in the fees and your application to take the admissions exam, and study hard. As my yachting colleagues would say, “You’re falling astern of the fleet, and you’ve got a lee shore close aboard.”

For who tuned in late, see my blogposts “18F? WTF,” 7/9/21, and “The Response,” 8/4/21.

First, what I will not now comment upon. I will not discuss to what extent the response is non-responsive. The letter and the response speak for themselves. As for the substance of the response, I will observe only that the references to “public postings” and “its public website” speak of dates prior to the launch of DAWSON and the concurrent obliteration of the former “public website.” As that “public website” is no longer accessible, I cannot verify these statements, so I will assume, without necessarily agreeing, that they are all correct.

Now for my comments. The response does not dispute that no “beta” version was made publicly available; I therefore deem it admitted. For two million dollars, one might expect more than a show-and-tell at a meeting of the august and exalted Tax Section of the American Bar Association (of which I am not a member), and a now-extinct video. Those of us whose shoes do not attain to the Mark 9:3 standard are apparently of no account. Remote access to the proceedings of the “small court” is not for “little people”; you know, the ones who pay taxes.

The response wastes a good deal of paper and toner, not to mention “somber reasoning and copious citation of precedent”, in a gratuitous attempt to lecture me on the Freedom of Information Act. The letter never mentioned that Act, for the simple fact that I am well aware that the Act does not apply and is therefore irrelevant. A brief perusal of Tax Court Rule 71(a) would reveal the template I used for the letter.

Finally, further to the last-stated, I note that, while I signed the letter in blue ink, the response I received is unsigned. I therefore cannot be certain that the purported author of the response prepared it or read it. Of course, the author may be precluded from signing manually for physical reasons. However, it has been my experience in such cases that correspondents avail themselves of an assistant or colleague to draft, review with them, and sign the document, on their behalf. I trust that Ch J Maurice B (“Mighty Mo”) Foley received the courtesy copy of the response therein referenced, and has required it to be manually signed (either by the author or agent), preferably in blue ink.

I shall not weary my readers with more at this time. Quarrels are tiresome to all but the participants, and lawyers’ quarrels are even worse, except for emotional litigants, who enjoy them but refuse to pay for them.

Like the human players in Jaques’ soliloquy, the CDP plays many parts. It can take the form of a phoneathon, a tete-a-tete, or a correspondence volley. Thus Judge Ashford teaches us and James D. Sullivan, Docket No. 11738-20L, filed 8/4/21.

James is a frivolite, playing the SE gambit: “The IRC is only applicable in DC and US Territories for those born in  US Territory, who work for the National Government, or are US  Resident Aliens. At all times relevant to this inquiry, the IRC did not apply to me. I was born in one of the 50 states and thus not subject to the territorial jurisdiction of DC and US Territories. I did not work for, or receive income from, the National Government in any capacity, and was not a US Person (a US Taxpayer). I am not one described in IRC 6331(a) as a federal employee, officer or or [sic] elected official. Thus, I received no ‘taxable income’; the levy is invalid; and the NOIL [i.e., the levy notice] must be rescinded.” Order, at p. 3, footnote 4.

James got a SNOD for the $370K in deficiencies and chops, and timely petitioned, except he didn’t pay the sixty Georges or file a proper amended petition, so he got tossed four years ago. When he got the NFTL, he went to Appeals.

There’s argy-bargy about whether James got some letters from the SO, and there’s also some phone-tag, but James chose to respond to everything in writing (frivolities and attempts to litigate the deficiencies included).

Judge Ashford: “Petitioner also asserts that he never received a (telephonic) CDP hearing. However, the record reflects that petitioner’s primary method of communication during the CDP process was through mailed correspondence. AO R attempted to call petitioner several times and had been corresponding with petitioner via mail because that was the way he communicated with her. She explained in her letters to him why he could not challenge his underlying liabilities and, by his own admission, he was not seeking a collection alternative. These communications with petitioner collectively constituted his CDP hearing; he thus received all the process that was due to him. See sec. 301.6330-1(d)(2) Q&A-D6, Proced. & Admin. Regs. (‘A CDP hearing may, but is not required to, consist of a face-to-face meeting, one or more written or oral communications between an Appeals officer or employee and the taxpayer or the taxpayer’s representative, or some combination thereof.’)….” Order, at p. 6. (Citation and name omitted).

Takeaway- A CDP can be a couple letters (hi, Judge Holmes).

Readers may recall my blogpost “18F? WTF,” 7 /9/21. I received a reply to my letter in paper format yesterday, unsigned, although the name and title of Tax Court’s general counsel was typed on the letter. I had requested a reply by e-mail, so I might cut-and-paste the reply in its entirety, unaltered into this blogpost.

I do not intend to type a copy of this document, with its voluminous footnotes.

I have promised, however, both the addressee and my readers that the full document will be posted. I will therefore scan the document and insert it in a subsequent blogpost at no distant date.

See below. My comments will follow at no distant date.

2021_08_04_19_49_20