Perhaps Estate of Mary P. Bolles, Deceased, John T. Bolles, Executor, 2020 T.C. Memo. 71, filed 6/12/20, might have been assigned to Judge Patrick J. (“Scholar Pat”) Urda, or his equally scholarly colleague Judge Albert G (“Scholar Al”) Lauber, but now the mantle of Publius Ovidius Naso (to say nothing of the carapace of Franz Kafka) falls upon Judge Goeke.

The late Mary wanted to split the not-inconsiderable loot she and late husband (“late” as in both divorced and dead) accumulated among their five (count ‘em, five) offpsring. So the late Mary, before she became the late Mary, created a loan structure, with advances and repayments within the annual exclusion and lifetime exemption limitations.

We’ve all worked on those; rarely is it rocket science. Except Pete.

Pete was Number One Son. He inherited late father’s architectural talents but not his business acumen. So Mary transferred from the family trust she controlled better than $1 million to Pete over a 22-year span. Pete did make some repayments the first couple years (hi, Judge Holmes), but never thereafter.

Mary next created a self-settled trust, cutting Pete out of everything, and then engaged Karen Hawkins, Esq., to straighten matters out with Pete, and recast the loan-gift situation. I wonder if this was the same Karen Hawkins who later became chief of OPR while Chair-Elect of the ABA Tax Section (to which august body I do not belong), and as OPR chief ran the revision of Circular 230. She had practiced on the Left Coast when Mary was dealing with Pete. Since Judge Goeke names her specifically, that’s strong evidence.

She amended Mary’s trust to recharacterize the advances to Pete as loans, and papered accordingly. But being a good lawyer, she left herself a out, namely, that if IRS held the note Pete gave was adjudged worthless, they were all gifts. IRS drops the worthless note argument.

The ex’r claims loans, IRS claims gifts, and Judge Goeke decides metamorphoses.

First, IRS drops interest on the gifts; it was never in the SNOD or the Answer, nor did IRS amend. Second, BoP. The ex’r claims IRS has it.

“While petitioner’s position has merit, we do not need to resolve the issue because the evidence in this case permits a resolution on the record of trial, and we do not rely on the burden of proof to decide this case.” 2020 T. C. Memo. 71, at p. 9.

If anyone remembers the last time IRS lost on BoP, other than a Graev lapse in Boss Hossery, please raise your hand. You’re better than I.

But, spoiler alert, the loans are gifts. At least mostly.

“While Mary recorded the advances to Peter as loans and kept track of interest, there were no loan agreements or attempts to force repayment. Respondent focuses on the lack of security for the loans to Peter. We agree that the reasonable possibility of repayment is an objective measure of Mary’s intent. The estate maintains that during her life Mary always considered these advances as loans. We cannot reconcile this argument with the deterioration of Peter’s financial situation and the ultimate failure of his practice in San Francisco and later in Las Vegas.” 2020 T. C. Memo. 71, at p. 10.

So there came a metamorphosis.

“Peter’s creativity as an architect and his ability to attract clients likely impressed Mary. We find she expected him to make a success of the practice as his father had, and she was slow to lose that expectation. However, it is clear she realized he was very unlikely to repay her loans by October 27, 1989, when her trust provided for a specific block of Peter’s receipt of assets at the time of her death. Accordingly, in 1990 the ‘loans’ lost that characterization for tax purposes and became advances on Peter’s inheritance from Mary. In conclusion, we find the advances to Peter were loans through 1989 but after that were gifts. We have considered whether she forgave any of the prior loans in 1989, but we find that she did not forgive the loans but rather accepted they could not be repaid on the basis of Peter’s financial distress.” 2020 T. C. Memo. 71, at pp. 10-11.

In intrafamily loans, reasonable possibility of repayment is a big deal.

If you want to spring for the “fitty cent a throw, three George cap” on USTC documents of record, the hard-laboring clerks afar remote from the Glasshouse are ready to serve them up. Just call them and they’ll e-mail you the papers.

Here’s the official word: https://ustaxcourt.gov/press/05292020_copies.pdf

Note they don’t tell you how to pay, so have your credit card and bank routing/account numbers handy.

Edited to add: As before, you may use pay.gov to make payment.

Having wholly-owned or controlled corporate-type entities as placeholders or fronts isn’t necessarily a tax dodge. But IRS is distinctly inhospitable when taxes are on the table.

Ch J Maurice B (“Mighty Mo”) Foley expatiates thereon in River X, Inc., Docket No. 22324-19L, filed 5/29/20.

There’s a bunch of years, taxes, TFRPs and assorted penalties. And IRS claims River X is a nominee or alter ego of the Xaviers.

But missing from this picture is a SNOD or NOD. The case comes up on a motion to restrain or refund.

After the usual “we’re only a little court with limited jurisdiction” patter, Ch J Mighty Mo man-splains the alter ego-nominee story.

“Petitioner’s assertion that as a ‘person liable for the tax’ it is entitled to its own CDP rights is misplaced. Regulations promulgated under sections 6320 and 6330 state that known nominees of, or persons holding property of, the taxpayer are not entitled to a collection due process or equivalent hearing. Secs.301.6320-1(b)(2), Q&A-B5; 301.6330-1(b)(2), Q&A-B5, Proced. & Admin. Regs. The Internal Revenue Manual (IRM) also explains that the ‘terms often interchange or overlap, but “alter egos” are usually corporate and business entities controlled by the taxpayer, whereas “nominees” are usually individuals who clearly have a separate physical identity.’ IRM pt. 5.17.2.5.7(3) (Jan. 8, 2016). The IRM further explains that although a nominee or alter ego is not entitled to CDP rights, the nominee or alter ego may appeal the filing under the Collection Appeals Program (CAP) process. IRM pt. 5.12.6.3.11(2) (Jan. 19, 2018). Any determination resulting from a CAP appeal, however, is not sufficient to invoke this Court’s jurisdiction. See e.g., IRM pt.5.1.9.4(5)(Feb.7.2014).” Order, at p. 3.

Note- A CAP is sort of equivalent hearing lite.

And since there’s no CDP or petition therefrom, Section 6330(e)(1) bars restraining levies. And in any case, even with a CDP or petition therefrom in play, nothing bars or lifts a NFTL.

If the Xaviers think IRS grabbed improperly, “…I.R.C. section 7426 provides that a person, other than the taxpayer, who is subject to a wrongful levy may bring an action in a District Court.” Order, at p. 5. More about that in my blogpost “Whose Money Is It Anyway?” 1/11/12.

The slogan of old Household Finance Corp. echoes through our profession. In recent years, I’ve gotten pitches from litigation lending outfits that will lend money against a home run in the courtroom. Those loans were real loans, although nonrecourse. And anyone taking such would be wise to put the proceeds in their escrow account, appropriately labeled and documented, and draw out the funds only to pay expenses and legal fees.

Judge Lauber comes down heavily on David A. Novoselsky and Charmain J. Novoselsky, 2020 T. C. Memo. 68, filed 5/28/20. It’s Dave’s story.

Dave was a Chicago litigator suing the State of IL for allegedly grabbing fees to which it was not entitled. Somehow doctors were among the grabbed, and a couple doctors (hi, Judge Holmes) ponied up better than $1.4 million, nonrecourse, stated interest but no promissory note or periodic payments, payout due only if Dave and co-counsel bring home the cliché.

Dave never reported the loan proceeds as income (or anything else), and also conceded he didn’t report another $253K. 2020 T. C. Memo. 68, at p. 2, footnote 2.

Now loan proceeds aren’t income, but there must be a noncontingent obligation to repay and a reasonable possibility of repayment. For the standard trudge through the factors, see 2020 T. C. Memo. 68, at p. 20, with 7 Cir no-factor-controlling gloss, and the overwhelming question “Was there a genuine attempt to create a debt, with reasonable expectation of repayment?”

Not this time. The contingency kills the loan.

But Dave had a saver. He could have treated the litigation support proceeds as trust funds, to be applied to fees only as earned (with hourly billing records; courts love those), and expenses per vouchers cataloged “through every passion ranging,” as a much finer writer than I put it.

Except he didn’t.

“The agreements stated (for example) that the money was to be ‘used to pay for all time and expenses incurred by NOVOSELSKY in pursuant [sic] of this litigation.’ If the funds had been meant to be held in trust, Mr. Novoselsky would not have been permitted to keep the money in his personal or business account. See Ill. S. Ct. R. Prof’l Conduct 1.15 (requiring that trust funds be kept separate from the lawyer’s own property). Nothing in the record suggests that Mr. Novoselksy held the counter-parties’ funds in a separate trust account.” 2020 T. C. Memo. 68, at p. 27. (Footnote omitted).

I note that the omitted footnote cites an IL case that says advance retainer fees belong to the firm and not the client. But those fees haven’t been earned yet. And in such a case as this, I’d be surprised if an attorney would be faulted for treating those advance payments as the clients’ money until earned, or expended in pursuance (hi, Judge Lauber) of the clients’ litigation. I always do.

I have discomposed numberless electrons praising the obliging nature of Judge David Gustafson. But there are limits, and today he establishes that Daniel E. Larkin and Christine L. Larkin, 2020 T. C. Memo. 70, filed 5/28/20, have stretched his patience to the limit.

Dan is a high-priced colleague in a big-time Cleveland OH firm, to an associate’s berth in which we were taught to aspire in my young day on the Hill Far Above. Needless to say, I never got there. Y’all might recall Dan and Chris from my blogpost “Obliging? He Lets It All In,” 3/14/18.

Well, after the continuances, the lawyer swaps, the trial and the post-trial briefing, Dan does less than brilliantly in USTC, despite his equally high-priced counsel.

“The Larkins did not make a plausible showing of reasonable cause and good faith. Their record-keeping was in disarray; they failed to timely report large amounts of income; they claimed substantial deductions for which they had no proof at all and others for which their proof was insufficient.

“The Larkins are sophisticated business people. Mr. Larkin is a highly educated attorney with more than 20 years’ experience dealing in a variety of complex transactional matters. He was certainly capable of keeping appropriate, contemporaneous records, preparing detailed notes, and distinguishing personal from business expenses, yet the evidence he used to substantiate their deductions shows that he failed to make these efforts. Mr. Larkin disregarded instructions for properly completing his returns, as evidenced by his failure to attach underlying documents and the forms and calculations required to claim certain loss deductions. Such inaccurate and misleading income tax reporting does not reflect a reasonable attempt to comply with the Code.

“There is no evidence besides Mr. Larkin’s testimony that the Larkins sought advice in the preparation of their returns. The evidence shows that Mr. Larkin did little more than briefly consult with individuals at his place of employ; and he did not say who those individuals were, what information the Larkins provided to them, or what specific advice they supposedly gave. Moreover, Mr. Larkin clearly assumed the ultimate responsibility for the preparation of his returns.” 2020 T. C. Memo. 70, at pp. 71-72.

But before I go, there’s one point Judge Gustafson makes that wants repeating. Dan tries three (count ‘em, three) separate tries to reopen the record to put in stuff. At the end of trial, Dan moved to leave the record open yet again.

Judge Gustafson has about lost patience with Dan and his delaying tactics. This is from the bench.

“I’m going to deny your very broad motion to leave the record open so that you can bring in anything that relates to any deduction already at issue in the case.

“However, I am going to do so without prejudice to your renewing that motion when you have specific documents that you wish to offer. * * * You are free to file whatever motion you wish. I will tell you that a motion filed after 45 days…when Respondent [’s counsel] begins to work on her brief and invests time in it, and then you would be changing the ground underneath her, that would not be just.” 2020 T. C. Memo. 70, at p. 16.

My kind of Judge.

The words Neil Sedaka sang, and he and Howard Greenfield wrote, in 1962, fast-forward fifty years, typify the case of Roland J. Thoma and Donna M. Thoma, 2020 T. C. Memo. 67, fled 5/27/20. And they summarize the 104 (count ‘em, 104) pages of Judge Morrison’s prose and tables.

I’m sure all you practitioners have seen the sale of a practice or business, where the founding senior partner sells to the junior, and they do a role-reversal. Whereby junior becomes senior, but senior hangs around to smooth the transition, comfort the clientele, and make sure junior don’t loot the cookie jar until senior has his (it’s usually “his”).

Senior wants to claim he’s still a partner, to get SE treatment and those good above-the-line write-offs. And of course the junior wants to keep the goodwill, for which he’s paying big bucks. But junior has also bought the shop, so senior’s powers are severely constrained. Senior would like limited partner status, but the Luna factors impinge, and thereby hangs the tale. For a quick refresher on Luna, see my blogpost “Substance Over Form,” 2/11/11, and 2020 T. C. Memo. 67, at pp. 64-65.

The Luna analysis is thoroughly fact-driven, and I won’t drive over Judge Morrison’s 104-page extravaganza.

But the key takeaways are the limitations on what Roland, outgoing alpha-accountant, could not do pursuant to the buyout agreement. What ultimately sinks Roland’s claim to guaranteed payments, partner status, or even IC, is that, when junior tossed him claiming misconduct, he filed for and won unemployment compensation.

And his eventual success getting junior to cough up the balance of the purchase price for the CPA practice doesn’t help.

Of course, as Roland is a CPA with beaucoup years of experience, the chops rain down.

If the late Dr Eric Berne, author of the classic “Games People Play,” were still among us, he would find US Tax Court “a medley of extemporanea,” as a much better writer than I put it. To prove the point, as if more proof were needed, here’s Enrique Aguilar, 2016 T. C. Sum. Op. 16, filed 5/26/20.

It really isn’t Enrique’s story, although his $12K of unreimbursed employee expenses stand the test Judge Gerber applies after IRS tosses Enrique’s entire return as fiction. No, it’s Mr Michael J Contract who, for ten (count ‘em, ten) years prior to year at issue, prepared Enrique’s returns.

Mr Contract (qualifications unstated) was a true original. I’ll let Judge Gerber explain.

“For the [year at issue] return it was Mr. Contract’s idea to report the reimbursed expenses received from Penske as business income on Schedule C and then to deduct that exact amount, resulting in zero income from his employee activity as a buyer. He created that fiction in order for petitioner to claim other expenditures as business expense deductions on Schedule C.” 2020 T. C. Sum. Op. 16, at p. 4.

As Mark Twain put it, “Well you’ve got to admire men that deal in ideas of that size and can tote them around without crutches.”

So on the trial IRS lets stand the $12K unreimbursed employee business expenses, but the rest goes to the fictionist’s grave.

On brief, IRS wants to toss everything, nail Enrique with the phony Sched C income Mr Contract dreamed up but not the offsetting deduction, and of course dump the $12K that exam allowed.

Judge Gerber isn’t having that.

“We agree with respondent that the $40,345 of income and expenses reported on the Schedule C was a fiction. The Court, however cannot agree that petitioner is not entitled to deduct the $12,060 of expenses respondent, pursuant to an examination, allowed in the notice of deficiency.

“Petitioner, on brief, argues that he did have unreimbursed employee expenses. On the record, petitioner presented evidence of expenditures. Under the circumstances, we cannot ignore the $12,060 that respondent allowed petitioner after an audit examination of his records. No evidence was presented at trial showing that respondent’s allowance of $12,060 in the notice of deficiency was in error.” 2020 T. C. Sum. Op. 16, at pp. 6-7.

Enrique gets the $12K, IRS tosses the trash, and Judge Gerber gives them both a Rule 155 beancount at no extra charge.

And this is what Doug Schulman and Dave Williams were trying to stop with the 1884 horse statute.

It’s a beautiful Spring day here on this US Minor Outlying Island off the coast of North America, but my mind is going back fifty-plus (don’t bother counting ‘em) years to the smoke-filled cardroom in Myron Taylor Hall. Around a battered table sat four young men, and as I look over their shoulders in memory I see Joel, and Barry, and Jersey Ed, and Slater. I see one of them (doesn’t matter which) slap down his cards on the table and ask “who dealt this mess?” Even if he himself had dealt it.

Oh, my misspent youth! And what wouldn’t I give to have it back and do it right this time!

But today that phrase comes back, as I behold Laurence Gluck and Sandra Prusock, 2020 T. C. Memo. 66, filed 5/26/20. I never ran across Mr Gluck, but he is a high-roller in the NY real estate business. And this is the story of a busted 1031 that never should have happened. Mr Gluck picked up a heavy chunk of change when he unloaded a high-priced condo on the “cultured, elegant” Upper West Side.

Now even the stones in the street know you do a 180-45 (unless your tax year ends sooner, in which case the time frames collapse), and 1031 into like-kind. But Mr Gluck hasn’t got enough cash to buy the kind of quality bricks to which he is accustomed. So he’s set up the condo sale with a QI (qualified intermediary, and I’ll tell you the backstory on that and the 1986 Tax Code if you’ll buy me a drink when the world is free). He gets a 25% tenant-in-common interest across town, which he has the QI put in a single-member LLC (disregarded). That’s what the deeds show. And that’s copasetic, right?

Wrong.

Some partnership, which according to the online records of the Register of the City of New York, County of New York, which keeps the land records of Our Fair City, was not in title when Mr Gluck bought in, filed a 1065, which claimed it owned the building. This partnership did give Mr Gluck some financial statements about the building claiming they owned it since 1962 during due diligence. Whether Mr Gluck got title insurance and what the title insurer insured I cannot tell.

“These returns list the name of the partnership as ‘G&P, c/o EMG & Co.,’ with an address at XYZ Park Avenue in Manhattan. The returns state that G&P was engaged in a rental real estate business and that this business began operations on February 1, 1962. It appears that G&P was originally formed as a family partnership and that, over successive generations, interests were divided and subdivided among family members and their heirs.” 202 T. C. Memo. 66, at p. 6. (Names and address omitted).

These characters gave Mr Gluck a K-1.

Why this didn’t set off bells, whistles, and sirens I do not know. Howbeit, Mr Gluck never filed Form 8082, stating he disagreed with the treatment of his interest as a partnership interest (ineligible for 1031 nonrecogition), and not as a tenancy-in-common (which is eligible).

Of course, all these ownership questions are partnership items, the partnership doesn’t qualify as a small partnership (which would duck TEFRA) because of Mr Gluck’s LLC, there never was a FPAA whereat Mr Gluck could assert his tenancy-in-common, so all of Mr Gluck’s items are individual computationals, wherefore he can’t contest the mischaracterization that blows up his 1031.

Judge Albert G (“Scholar Al”) Lauber has to toss so much of Mr Gluck’s petition as alleges qualification with 1031.

“The partnership reported on its [year at issue] tax return that it owned the apartment building and that petitioners acquired during [year at issue] a 50% interest in the partnership. The partnership was subject to the unified audit and litigation procedures of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). See secs. 6221- 6234 (as in effect for years before 2018). Respondent contends that his adjustment disallowing like-kind exchange treatment was necessary to conform petitioners tax treatment to the treatment shown on the partnership’s return and was thus a ‘computational adjustment’ within the meaning of section 6231(a)(6). Deficiency procedures generally do not apply ‘to the assessment or collection of any computational adjustment.’ Sec. 6230(a)(1). Respondent thus urges that we lack jurisdiction to address petitioners’ entitlement to like-kind exchange treatment.

“We conclude that we lack jurisdiction to redetermine the deficiency but that we have jurisdiction with respect to the penalty. We will therefore grant in part respondent’s motion to dismiss. Because we lack jurisdiction to address the merits of respondent’s adjustment, we will deny petitioners’ summary judgment motion.” 2020 T. C. Memo. 66, at pp. 2-3.

Of course, putting in the deeds to which I have referred at the summary J hearing is too little, too late. Absence of Form 8082 sinks Mr Gluck before he weighs anchor, no matter what arguments counsel makes. Computational adjustments stretch beyond arithmetic to tax treatment of an item, and IRS can go by the partnership return, absent a FPAA.

But penalties are still on the table.

Edited to add, 3/28/22: My colleague Peter Reilly, CPA, backed with all the resources of Forbes and his own extensive knowledge, informs me that the Glucks appealed to 2 Cir, and got the “pore l’il ole Tax Court” treatment. I won’t comment, here, as I did to Mr Reilly just now, about my view of the quality of advice Mr Gluck got in this deal.

Here’s the opinion

That’s if you’re dealing with a computational adjustment from a NOD, not a SNOD. Here’s Judge Albert G (”Scholar Al”) Lauber to tell you all about it.

Amanda Iris Gluck Irrevocable Trust, 154 T. C. 11, filed 5/26/20, got a heavy-duty computational adjustment following a FPAA on a partnership wherein it was an indirect partner, hitting it for three years’ worth of tax. IRS sought to collect on the last two of those years. AIGIT petitions four (count ‘em, four) years, because the comp adjustment wiped out AIGIT’s claimed NOL from Year One.

IRS says no collection action for Year One, so that’s off the table. And IRS applied various other credits to Year Two, so no tax due for that year and thus no collection action. Greene-Thapedi and all that, y’know.

AIGIT says they want to fight about the shootdown of the 2012 NOL. If they get that, they owe nothing, so AIGIT proposes no collection alternative.

Judge Lauber: “The SO declined to consider petitioner’s underlying liability challenge, reasoning that it had had a prior opportunity to dispute its [Year Three and Year Four] liabilities…by paying the tax and filing refund claims. Respondent now concedes (correctly) that the SO’s rationale was erroneous. When section 6330(c)(2)(B) refers to a prior ‘opportunity to dispute such tax liability,’ it means an opportunity to dispute the liability in a prepayment posture.” 154 T. C. 11, at p. 12 (Citations omitted)(Emphasis by the Court).

Now we all know that in the SNOD (deficiency) context, comp adjustments are off the table. In the TEFRA days when the facts of this case took place, the fight at partnership level settled liability, so all that’s left is arithmetic, no second bite.

But here there was no first bite.

“The liabilities at issue arose from computational adjustments to petitioner’s [Year Three and Year Four] returns, which the IRS believed necessary to make those returns consistent with the reporting by the partnerships in which petitioner held interests. We generally lack jurisdiction to review computational adjustments in deficiency proceedings. See sec. 6230(a)(1). But our review in CDP cases is not so limited.

“In CDP cases involving assessable penalties (viz., penalties not subject to deficiency procedures), we have jurisdiction to review a taxpayer’s underlying liability for the penalty provided that he raised during the CDP hearing a proper challenge thereto. See Yari v. Commissioner, 143 T.C. 157, 162 (2014) (ruling that section 6330(d)(1) ‘expanded the Court’s review of collection actions * * * where the underlying tax liability consists of penalties not reviewable in a deficiency action’), aff’d, 669 F. App’x 489 (9th Cir. 2016)….” 154 T. C. 11, at p. 13 (Further citations omitted).

For the backstory on Yari, see my blogpost “The $100,000 Misunderstanding,” 9/15/14.

Anyway, the door is open, and IRS’ claim that AIGIT is fighting about the (closed) Year One is misplaced. AIGIT is claiming they should have been allowed a carryforward into Years Three and Four. And Tax Court can always go back to a closed year when a carryforward is on the table.

AIGIT also claims IRS messed up the computations, because the partnership from whence cometh this mess netted out some income and deductions.

The SO considered none thereof. So no summary J for IRS.

As United States Tax Court in exile is closed for the holiday, there will be no post other than this. I ask that readers place a candle in a window, if possible, in remembrance (electric preferred).