I am told that the title of this blogpost entered English from the Louisiana French adapting a Quechua word brought in to New Orleans by the Spanish Creoles. Therefore, it is a typical American word. I’ve used it in my blogposts before now, but I really like how Mark Twain defined it.

He said it was “a word worth traveling to New Orleans to get; a nice limber, expressive, handy word… They pronounce it lanny-yap. It is Spanish—so they said. It has a restricted meaning, but I think the people spread it out a little when they choose. It is the equivalent of the thirteenth roll in a ‘baker’s dozen.’ It is something thrown in, gratis, for good measure. The custom originated in the Spanish quarter of the city. When a child or a servant buys something in a shop—or even the mayor or the governor, for aught I know—he finishes the operation by saying—’Give me something for lagniappe.’ The shopman always responds; gives the child a bit of licorice-root, gives the servant a cheap cigar or a spool of thread, gives the governor—I don’t know what he gives the governor; support, likely.”

Today, SO D (name omitted) considered a request for “120 day stay of collection” as a collection alternative. All my super-sophisticated readers know that is not one of the options in Form 12153, but Craig A. Sopin & Ruth Sopin, Docket No. 10242-19L, filed 8/4/20 did request withdrawal of the NFTL, and added “…that their ‘[r]equest for 120 day stay of collection was denied’ and the ‘collection activity is overly aggressive under [the] circumstances.” Order, at p. 2 (Footnote omitted, but it says Judge Courtney D. (“CD”) Jones had some difficulty making out Craig’s & Ruth’s handwriting).

Judge CD Jones deals with Craig’s & Ruth’s sundry instances of noncompliance, but what interests me here is Craig’s & Ruth’s objection that the Appeals Office erred in considering a collection alternative “because they did not request one.” Order, at p. 4.

Well, even though it seems Craig’s & Ruth’s case took place far from New Orleans, Judge CD Jones is willing to allow Appeals to give something for lagniappe.

“We conclude it was not an abuse of discretion for the Appeals Office to construe petitioners’ request for a’120 day stay of collection’ as a collection alternative.” Order, at p. 4.

But Craig’s & Ruth’s noncompliance sinks that.

It was said that Billy T. Sherman came to hate that song, because he could not walk out his front door without some brass band playing it; legend has it that it was played at his funeral.

I don’t know Judge Kerrigan’s musical tastes, but today she has a duo of Effingham County conservation easements, sired by HRH, the progenitor of a large number of these dodges, and she gives both the Billy Sherman treatment.

The pair are Red Oak Estates, LLC, Amanda Farahany, Tax Matters Partner, 2020 T. C. Memo. 116, and  Cottonwood Place, LLC, Hugh F. Smisson, III, Tax Matters Partner, 2020 T. C. Memo. 115, both filed 8/4/20.

The issues are the usual, the split on extinguishment and the Chevron-Oakbrook joust over Reg. Section 1.170A-14(g)(6)(ii). Coal Holdings and PBBM each get a cameo appearance. And Belair comes up to tackle GA state law.

All the foregoing have furnished me with enough blogfodder, so that I need not unduly wear the reader’s patience by retelling an already-many-times-told tale. Just Google the case names.

In the end, Oakbrook carries the day. And now join in the chorus.

It’s been my experience over the last 53 (count ’em, 53) years of practicing law that answering one question only raises others. It resembles a whack-a-mole, or, for the classically-educated, Hercules and Hydra. Today we have a designated hitter from Judge Buch.

James Matthew Enright, Docket No. 6600-19, filed 8/3/20, is on his third trip to Tax Court. His previous ventures got tossed.

” Mr. Enright filed a petition purporting to place at issue the years 2000 through 2019. In the sections 2, 5, and 6 of the petition, Mr. Enright wrote: ‘Never received the notice of Deficiency; [n]ever received the notice of Determination.’

“… the Commissioner filed a thorough motion to dismiss in which he detailed what notices had (and had not) been issued to Mr. Enright for each of the twenty years he attempted to place at issue. The Commissioner also asked that the Court impose a sanction on Mr. Enright. The Commissioner notes, and the Court’s own research confirms, that this is the third such frivolous petition filed by Mr. Enright. See docket nos. 2444-17 and 10557-18, in which Mr. Enright attempted to place at issue years ranging from 1958 through 2017.” Order, at p. 1.

I never blogged Mr. Enright, but the sort of game he played featured in my blogpost “I’m Beginning to See the Light,”4/9/18. At that time, I suggested that a Section 6673 chop would cool the ardor of those inclined thereto. Judge Buch, apparently a frustrated baseball fan, decides “three strikes and you’re out,” and gives Mr. Enright a $2000 chop.

OK, but the question. Section 6673(a)(1)(B) clearly sets up the chop. So how does Tax Court collect? The German philosopher Hans Vaihinger, author of Die Philosophie des ‘Als Ob’, cannot help, because only in Federal courts other than Tax Court can Section 6673 chops be collected, after notice and demand, “in the same manner as a tax.” Section 6673(b)(2).

So “as if” doesn’t work. Mr. Enright seems to reside in FL; can Tax Court docket the order with the County Clerk in whatever county Mr. Enright is domiciled? Will the sheriff collect the judgment? Is the order docketed in USDC in and for the relevant district? Does the US Marshal’s Office collect?

I wonder what the collection rate might be for Section 6673 chops.

Judge David Gustafson is obliging to a fault. Today, however, instead of taking on the real big issue (are the travel reimbursements to the employees of Reflectxion Resources, Inc., 2020 T. C. Memo, 114, filed 8/3/20, taxable as wages?), Judge Gustafson spends 35 (count ’em, 35) pages of opinion to conclude that a justiciable controversy does not exist when both petitioner and IRS agree that Section 530 (the Social Security Act fix from 1978 when an employer misclassifies an employee consistently for years) does not apply to certain quarters of withholding. Withholding goes quarter by quarter.

Reflectxion wants to raise other issues, but those are for another day and another petition. This one affects only those quarters where Reflectxion used a payroll servicer under a professional services arrangement. And for those there is a dispute, and thus a justiciable controversy.

So there’s jurisdiction only for the quarters the servicer was doing the payroll.

The Reflectxions were here before, fighting stealth subpoenas. See my blogpost “Stealth Shot Down,” 11/21/19.

Read the Manual

The “F”is for emphasis. So Judge Colvin admonishes IRS. The manual in question is the Marine Corps Manual, which is the nearest thing to Holy Writ for the eagle, globe and anchor folks, who guard us while we sleep.

And it certainly serves as a divorce or separation agreement, when confirmed by 58 (count ’em, 58) words of e-mails between Adam Jordan Winslow, 2020 T. C. Sum. Op. 22, filed 8/3/20, now or formerly USMC, and his loved-once. Especially so since his loved-once confirmed that what she was getting before the divorce came through was based on the MCM.

The only question was whether or not there was a separation agreement. Even though Judge Colvin’s c.v. only refers to his service as counsel to the US Coast Guard, he follows the MCM.

“A valid written separation agreement exists where one spouse assents in writing to a letter proposal of support by the other spouse. A written separation agreement need not state a specific amount of required support so long as there is an ascertainable standard with which to calculate support amounts. The emails show that petitioner and his former spouse both adopted the Marine Corps Manual family support policy as the basis for fixing the amount of the monthly payments. In her email to petitioner his former spouse directly refers to the family support policy. Respondent points out that in his email petitioner did not refer to the Marine Corps Manual. However, the amounts stated in his email, when considered in the context of petitioner’s familiarity with the Marine Corps Manual and its mandatory nature (i.e., ‘violations of this order are punishable under the UCMJ, and may subject violators to adverse administrative action’, MCO 5800.16A, para. 15000), clearly show petitioner’s intention to comply with the Marine Corps Manual.” 2020 T. C. Sum. Op. 22, at pp. 8-9. (Citations omitted). And if you don’t know what UCMJ stands for, consider yourself lucky. You are well advised not to find out too much about it, especially if you wear a uniform.

And to figure out what part of the payment was alimony (deductible for years at issue) and child support (not deductible), Judge Colvin deducts the difference between single spouse payment and spouse with one child payment per the MCM from what AJ paid.

When I came upon Bradley Rice & Laura Rice, Docket No. 7890-19, filed 8/3/20, there flashed through my mind my “lookback” series of blogposts, starting with “Lookback in Anger,” 12/12/11, and ending with “Lookback and Get a Refund,” 10/24/19. It seems neither IRS nor Bradley & Laura had read any thereof.

My somewhat carrier-witted mind recurred to the story of the retired hardware dealer (to my offshore readers an ironmonger) and his feckless son and successor, giving rise to the title set forth at the head hereof, as my high-priced colleagues would say. But that is not for a blog meant for ecumenical reading. Back to work!

Bradley & Laura and IRS lay upon the cyberdesk of ex-Ch J Michael B (“Iron Mike”) Thornton a joint settlement stip and a joint proposed stipulated decision. Said documents seek entry of decision that Bradley & Laura are entitled to credit for overpayments in each of two (count ’em, two) successive years.

Ex-Ch J Iron Mike bounces them both.

“Section 6512(b)(1) confers jurisdiction on the Tax Court to determine the amount of an overpayment which is to be credited or refunded to the taxpayer for a year that is properly before us for the redetermination of a deficiency. An overpayment of tax under section 6512(b)(1) requires, among other things, payment in excess of the deficiency plus any penalties and additions to tax. In addition, section 6512(b)(3) limits the amount of the allowable credit or refund based on the time of payment of tax and provides that ‘[n]o such credit or refund shall be allowed or made of any portion of the tax unless the Tax Court determines as part of its decision that such portion was paid’ within one of three specified time periods. The parties’ filings lack appropriate language to establish petitioners’ entitlement to any overpayment.” Order, at p. 1. (Footnote and citation omitted).

Besides, the stip only refers to attached statements of account, rather than reciting specific amounts and dates. Worse, the contemned documents “…incorrectly refer to ‘additions to tax’ due from petitioners under the provisions of section 6662(a). Section 6662(a) imposes a ‘penalty’ rather than an ‘addition to tax’, in contrast to provisions such as section 6651(a), which imposes an ‘addition to the tax’. Order, at p. 2.

Takeaway- When credits or refunds are on the Tax Court table, don’t forget to look back.

We have all been taught that there is no prescribed form of SNOD. The notice, be it called whatever, must state tax type (income, excise, estate, gift), year, amount of deficiency, and “a notice to the taxpayer of the taxpayer’s right to contact a local office of the taxpayer advocate and the location and phone number of the appropriate office.” Section 6212(a).

Now whether the TAS notice is a separate document, or includible in the text of the SNOD, is nowhere stated. Neither is the absence of the TAS notice expressly stated to be a jurisdictional defect, or a mere procedural irregularity, curable whenever.

That said, today we have Muhammad Ishaq & Rahat Sultan Ishaq, Docket No. 13309-19, filed 7/31/20, a designated hitter from Judge Albert G (“Scholar Al”) Lauber. Mu & Ra can’t find the SNOD they petitioned.

“In their petition petitioners checked the box stating that they were disputing a “notice of deficiency” and listed the date of the notice as June 28, 2019. The document they attached to their petition was dated June 28, 2019, but it was not a notice of deficiency. Rather, it was a Letter 555 which stated, ‘We previously sent you a Notice of Deficiency.’ The letter indicated that petitioners had submitted additional information to the IRS but that the IRS ‘did not make changes to the tax increase we proposed previously because the information you sent us did not justify a change.’ The letter informed petitioners that ‘[t]he last date to petition the Tax Court is July 19, 2019.’ This suggests that a notice of deficiency was sent to petitioners 90 days previously, i.e., on April 19, 2019. The letter showed a $15,821 balance due (including penalties and interest accrued to June 28, 2019).” Order, at p. 1.

Well, Mu & Ra petitioned July 17, 2019, so they’re timely, no? No, because neither IRS, nor Mu, Ra, or their trusty accountant, can find the SNOD.

Anybody but I remember Oola Mar & Marlin D. Johnson? No prize if you do, but you certainly pass the cognitive impairment exam. The rest of you, see my blogpost “Fake Out,” 12/14/16. It seems IRS gave Oola Mar & Marlin a Letter 4314C, which likewise said that IRS sent a SNOD, except sometimes IRS didn’t and STJ Lewis (“Great Name”) Carluzzo didn’t mind. Apparently Letter 555 is Letter 4314C’s little brother; or maybe not.

Judge Scholar Al is not going to try to figure this out. Dismissed for want of jurisdiction.

But wait, there’s more.

“In his supplemental response respondent noted that the IRS had issued to petitioners identical Notices CP21E dated February 24, 2020, which showed that they had a balance due of zero for 2017. Respondent explained that these Notices reflected the reversal of a premature assessment of the 2017 liability that the IRS had made on September 2, 2019. According to respondent, the Notices CP21E do not constitute a determination by the IRS that petitioners are not liable for a deficiency and penalty for 2017. Respondent accordingly believes that a ruling on his Motion to Dismiss for Lack of Jurisdiction ‘remains necessary to resolve this case.'” Order, at p. 2, footnote 1.

So IRS can hit Mu & Ra with a SNOD, as SOL hasn’t run (calendar 2017 tax due date was April 17, 2018).

And taxpayers can magically ascertain if a SNOD was really sent, because IRS may just be playing one of its little tricks when it says one was sent that they can’t find.

Today the new, only-marginally-improved, jazzy Tax Court website carries this announcement:

“On Monday, August 3, 2020, the Court will be performing a circuit upgrade from 4:00 PM to 5:00 PM Eastern time. There may be a brief disruption to eAccess and this website.”

Why not Friday evening around 8:30 p.m.? Why shut down when bloggers, petitioners, practitioners, and students are checking for opinions and designated hitters ? If the “contractors” who have foisted this shambolic lash-up on us taxpayers were unaware that opinions and designated hitters get released at 3:30 p.m., could not someone from the Clerk’s office or Public Affairs have gently suggested that these genius barflies attempt to mitigate, if not eliminate, the disruption this will cause?

And next time it is decided to fuss around with the website, which I hope will not be in my lifetime, why not ask the users, the taxpaying public who are paying for this shemozzle, to weigh in with some rational suggestions?

It used to be that Judge Buch discommoded more electrons when telling a pro se that dismissing a petition, otherwise than for want of jurisdiction, means IRS wins.

Compare and contrast my blogpost “Without Prejudice = Extreme Prejudice,” 7/6/16, with Martin William Joyce, Docket No. 1016-19, filed 7/31/20.*

Yes, I know, there was a NOD in the ’16 case, and a SNOD here, but mox nix. The time to petition either NOD or SNOD is long gone by the time a motion to dismiss is granted. And that is so in a Whistleblower (if anyone could figure out when the actual rejection by the Ogden Sunseteers took place). See my blogpost “Prejudice? No Prejudice? Mox Nix,” 8/31/18.

If you have an idle moment, check out Section 7345(e): if there’s no statutory time limit on petitioning a passport grab, why can’t a petition from such not be dismissed without prejudice?

Back to our game, as the chess analysts say.

Judge Buch once again cites Hank Black’s law dictionary and Section 7459(d). Maybe because this is a SNOD case and not a NOD case, Judge Buch can dispense with the “too late to refile” discussion.

“If Mr. Joyce wishes to concede his case, he may enter into a stipulated decision with the Commissioner agreeing to the adjustments, or he may refile his motion to dismiss, making clear that he intends that the dismissal would be with prejudice.” Order, at p. 1.

In any case, Mr Joyce’s motion is tossed. With prejudice.

*Joyce 1019-16 7 30 20

I can hear in my mind’s ear the gravelly rasp of Conrad Veidt as I read AG Processing, Inc. A Cooperative and Subsidiaries, Docket No. 23479-14, filed 7/31/20. Somebody wants to see a bunch of documents from the trial and post-trial; see my blogpost “A Hill of Beans,” 10/16/19, for the backstory.

You’ll surely recollect that Tax Court threw open the Copywork Office at the end of May. No? Then see my blogpost “On the Record,” 6/1/20.

Well, today Judge Elizabeth Crewson Paris has a bunch of unnamed nonparties who want copies of “…docket entries 32 (respondent’s Pretrial Memorandum), 37 (First Stipulation of Facts with attached exhibits), 47 (parties’ Joint Status Report), and 49 (parties’ Joint Status Report).” Order, at p. 1.

The docket search says this is an order for a status report, except it’s really more than that. Apparently, the Rule 155 beancount has been on hold since January, so maybe settlement is in the wind. In any case, decision has not yet been entered.

Howbeit, before Judge Paris is willing to let the anonymous paper-chasers get paw on paper, let IRS and the AGs “inform the Court whether the above-referenced documents have been properly redacted in compliance with Tax Court Rule 27 or are otherwise subject to claims of confidentiality or nonrelease.” Order, at p. 1.

Paper-chasers, take note. What you get may be a lot less than you asked for.