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

I learned this fact three-quarters through the last century of the last millennium, and it’s stayed with me. Today I offer for your reading pleasure and enlightenment Jerry R. Abraham and Debra J. Abraham, 2021 T.  C. Memo. 97, filed 8/3/21, as told by Judge Patrick J (“Scholar Pat”) Urda. That’s Jerry R. Abraham, Esq.

Jerry and Debra have four (count ’em, four) years’ worth of partially unpaid taxes, plus failure to pay tax and failure to pay estimateds add-ons, which don’t need Boss Hossery, 2021 T. C. Memo 97, at p. 12, footnote 6. IRS hits them with a NFTL, Jerry and Debra riposte with an OIC of $50K to settle a $204K liability. This gets bounced, and Jerry and Debra petition.

Jerry claims the SO at Appeals should have allowed the $2900 per month for their childrens religious education (they had ten, count ’em, ten children, and claimed the Code was biased against large families; “…they supported four of their children (ages 16, 18, 21, and 23), who lived with them.” 2021 T. C. Memo. 97, at p. 4. The SO allows two of the kids, but cuts those two non-minors whom Jerry says are ” underemployed or unemployed.” 2021 T. C. Memo. 97, at p. 8.

Jerry wanted to wild-card in a year for which he had neither SNOD nor NOD, but that gets dumped for want of jurisdiction.

The real fight is RCP. Appeals says Jerry can pay in full in the ten-year window.

“They assert that the offer specialist’s financial analysis incorrectly disallowed monthly religious education expenses of $2,932 for their dependent daughters in violation of the Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488. The Abrahams further argue that the financial analysis incorrectly included as assets $61,075 ‘set aside for taxes and IRA contributions.’ Finally, they contend that the financial analysis incorrectly computed the RCP by multiplying the monthly disposable income by 33 months rather than 12 months.” 2021 T. C. Memo. 97, at pp. 14-15.

Scholar Pat says “So what?”

“Assuming, arguendo, that the Abrahams are correct in each regard, we nonetheless will uphold the settlement officer’s decision to reject the Abrahams’ OIC. We have previously explained that ‘even if the settlement officer made errors in calculating * * * [the taxpayer’s] RCP, we will uphold his decision when the taxpayer’s offer is far less than the correct RCP.” 2021 T. C. Memo. 97, at p. 15. (Citations omitted).

Scholar Pat runs the numbers, gives Jerry his claimed amounts, and still Jerry is offering one-sixth of what he owes, and can pay.

Jerry’s claim that he might file bankruptcy doesn’t help.

“In their response to the motion for summary judgment the Abrahams also contend that the settlement officer abused her discretion by not performing a bankruptcy analysis, as purportedly required by IRM pt. 8.23.3.3.2.3(2) (Aug. 18, 2017), in response to Mr. Abraham’s statement at the CDP hearing that he ‘may file bankruptcy.’ The IRM ‘does not have the force of law and does not confer rights on taxpayers.’ In any event, IRM pt. 23.3.3.2.3(2) states that ‘[s]hould the taxpayer state an intent to file bankruptcy’, the settlement officer should ‘make a general analysis of collectibility and the liabilities that would be discharged.’ As explained at length, such an analysis had been performed by the offer specialist and adopted by the settlement officer, and that analysis demonstrated that the Abrahams could fully pay their outstanding liabilities.” 2021 T. C. Memo. 97, at pp. 15-16, footnote 7. (Citation omitted).

Finally, that Jerry cashed out his gov’t retirement twenty-five years ago, so he wouldn’t get a pension, isn’t a special circumstance.

If you remember the debut of The Fleetwoods’ hit thus entitled, you definitely qualify for Social Security. Today we have a reprise of Rule 34(a)(1), 11/30/18 amendment, as it maybe applies and maybe doesn’t, as more particularly bounded and described in my blogpost “The Stealth Rule,” 8/2/21.

Once again, Ch J Maurice B (“Mighty Mo”) Foley is insisting upon paper filing of amended petitions. Once again, I am confused.

Here’s Jenny A. Stewart, Docket No. 16161-21, filed 8/3/21.

“…petitioner shall, on or before September 14, 2021, file with the Court in paper form (not electronic) a Ratification of Petition bearing an original signature (not a photocopy), preferably in blue ink….” Order, at p. 1.

Can petitions and amendments thereto be filed electronically? If so, does the rule we learned so long ago, that any permanent mark a person makes, however they make it, that evidences an intention to be bound, is a valid signature, still apply?

Or in Tax Court, do we call you Mister Blue?

The biennial balloon has descended, and those wishing to clamber aboard on November 17 can read all about it.

Here’s the skinny: https://www.ustaxcourt.gov/resources/forms/Admission_Nonattorney_Info_and_Form_18A.pdf

Note the fees. It isn’t cheap, and the pass rate is way less than any Bar exam I know of.

Anyway, it’s open season for applications. So study hard. Time management and knowing the FRE cold are the keys.

Best of luck to the candidates.

I had noted before now the speed at which Judge Christian N. (“Speedy”) Weiler undertook his duties; see my blogpost “Fastest Promotion on Record,” 9/10/20. Today he has a full-dress T. C., Mary T. Belair, 157 T. C. 2, filed 8/2/21, but I’m not sure what in this case is so novel that a full-dress T. C. is called for.

The Robinette-Keller clash (de novo 8 Cir v record-rule 9 Cir; see 157 T. C. 2, at p. 3, footnote 3) seems to have been settled by van Bemmelen (the link here is to the opinion reported on a general freebie internet site, as the Genius Baristas (or 18Fs) at DAWSON have blocked it on the Tax Court site). C ‘mon, guys, get it together.

Maybe Judge Speedy Weiler wants to make it clear that the van Bemmelen summary J rationale applies to CDP cases, since van Bemmelen was a whistleblower. See 157 T. C. 2, at p. 11.

Anyway, Mary Belair is out. She hadn’t filed a couple delinquent returns (hi, Judge Holmes), and that would be enough to torpedo her IA, and even the OIC that SO gratuitously suggested she try, unless she filed the returns.

The only real novelty here is Mary Belair’s story about the “corrupt” AUSA in CT and her $20 million judgment, but I’ll leave that for you to read.