But Not In the District of Columbus
Tax Court is closed today, 10/11/21. It is a Federal holiday, officially Columbus Day, in many quarters Indigenous Peoples’ Day, but not a holiday in the District of Columbus (according to Google, the ultimate authority).
Howbeit (and this is a buzzsaw into which I’ll not stick a finger), there will be none of trial session, opinion, or order, so there will be no more from me.
Memory calls me back seventy years to a sidewalk in The Bronx (and it’s always “The Bronx”; even tourists know that, although, barring the Zoo and the Botanical Gardens, tourists never go there). We played a simple child’s game whose echoes reached even to the Moon (“One Giant Step for Mankind”). Oh, the Steps, the Baby Steps, the Umbrella Steps, and the Giant Steps! And Neil Armstrong didn’t have to ask “Mother, may I?”
But Earthlings approaching The Glasshouse in the City nonState are required to ask, and are oftentimes rebuked by the Ch J, for taking the wrong steps. And inasmuch as not all such steps are to be found in the Rules, Ch Js must spend a considerable amount of judicial time and effort in directing litigants into right pathways, playing Mother.
Here’s Julee H. Hafner, Docket No. 11144-20S, filed 10/8/21.* Ch J Maurice B. (“Mighty Mo”) Foley again expends scarce judicial resources on such as this.
“… the parties filed a Proposed Stipulated Decision. Upon review, the Court notes that the filing improperly incorporates both a Proposed Stipulated Decision and a Settlement Stipulation as a single submission. Conversely, the two items should be filed separately.” Order, at p. 1.
I cannot discern why the Heavens would fall if these were filed together. In any case, I’m confused. Rule 91(a)(2) says stipulations are to be “comprehensive.” They must embrace all facts, however obtained. The process of stipulation has more than once been described as “the bedrock of Tax Court litigation.”
So why must the parties be ordered to “…file, as separate docket entries, a Proposed Stipulated Decision and a Settlement Stipulation containing a statement of account (Form 3623)”? Order, at p.1.
Granted that IRM 8.17.3.3 (9/3/19) prescribes that form for computing the amount of any settlement at Appeals, and granted same may contain personally identifiable information (although the IRM instructions for preparation thereof are ambiguous, as SSAN is not included), it would be simple enough to seal the entire decision and everything with it. The Genius Baristas do that all the time, with no need for instruction from Ch J Mighty Mo. They even seal orders and opinions that are publicly available on the internet.
It is well-settled; that’s what a Judge says when someone’s case is going down the drain. Today Judge Courtney D. (“CD”) Jones says that to Kevin John, Sr. & Whitney S. Witasick, Docket No. 23069-16, filed 10/7/21*. Btw, to be precise, that’s “Mr. Kevin Witasick, Sr. and Mrs. Whitney S. Witasick (the Witasicks),” Order, at p. 1. I will not comment on this choice of nomenclature, as that might take us rather far afield.
Howbeit, Mr. Kevin went down in USDCWDVA for two (count ’em, two) years’ worth of Section 7201 tax evasion, related to excessive deductions for something called Stoneleigh. 4 Cir affirmed, and the Supremes passed. Arising therefrom, IRS wants partial summary J for the Section 6663 75% fraud chop, claiming collateral estoppel (issue preclusion).
Judge CD has bushelbasketsful of “somber reasoning and copious citation of precedent” that one who has taken a tax evasion fall has a fortiori either pled to, or been convicted on a trial of, fraudulently evading the payment of tax.
Mr. Kevin says “no, I did stipulate, but I did not capitulate.”
“For the years at issue, the parties stipulated that, ‘Respondent contends that if the Court decides that there is a deficiency for the [1999 and 2000 taxable years], petitioner, Kevin Witasick is collaterally estopped from challenging the fraud penalties for the [1999 and 2000 taxable years] because a jury convicted him of federal income tax evasion pursuant to 26 U.S.C. section 7201. Petitioners dispute this contention.’” Order, at p. 3.
Judge CD says all that means is that Mr. Kevin and IRS agree there’s a dispute, not that IRS can’t move for summary J to resolve it. Mr. Kevin may disagree, but he had his chance to litigate it, and lost.
And neither facts nor law has changed since Mr. Kevin went down, at least not enough to decontrol the criminal conviction. The issue before Tax Court is the same Stoneleigh write-offs that were at issue in the USDCWDVA litigation.
However, Mr. Kevin can fight about the precise amount of the understatements of tax. He cannot fight about whether there were understatements. “While Mr. Witasick may dispute the amount of the deficiencies for tax years 1999 and 2000, we have repeatedly held that taxpayers convicted under section 7201 are precluded from denying the existence of underpayments for the years at issue.” Order, at p. 5. (Citations omitted).
Just add three-quarters of whatever comes out on the trial.
That’s Judge Nega’s admonition to Anthony J. Todisco, Jr., in April J. Gonzales f.k.a. April J. Todisco, Petitioner, and Anthony Todisco, Intervenor, 2021 T. C. Sum. Op. 35, filed 10/6/21*. The fight is about the tax prep fee and the unreimbursed business expenses from Anthony’s construction employment.
It’s the usual indefinite-vs-temporary workplace, and undocumented and reimbursed expenses, but the key concept is what happened to Anthony when he intervened. There were two (count ’em, two) years at issue. Anthony and April jointly petitioned Year One, but only April petitioned Year Two, because there were five (count ’em, five) years between the two years at issue, and Anthony and April got divorced in between.
Anthony intervened for the second year (which only April petitioned). April also sought innocent spousery for both years, and had amended the earlier joint petition to seek only innocent spousery for that year, not to fight the deficiency.
IRS hadn’t ruled on April’s innocent spousery, but folded on the trial. IRS also folded the chops on the trial.
Anthony wanted to fight the deficiencies for the two years, but only got to fight one.
Judge Nega explains.
“As an intervening party, Mr. Todisco is not granted rights or immunities superior to those of the other parties, may not enlarge the issues or alter the nature of the proceeding, and must abide by the Court’s Rules. Since Ms. Gonzales did not, and does not, dispute the underlying deficiency for [Year Two], Mr. Todisco may not independently raise a dispute as to the underlying deficiency. Mr. Todisco passed on his opportunity to do so when he failed to timely file a petition of his own or join Ms. Gonzales’ petition. Therefore, as to Ms. Gonzales, we sustain respondent’s deficiency determinations for the [Year Two] taxable year as set forth in the notice of deficiency….” 2021 T. C. Sum. Op. 35, at pp. 12-13. (Citation omitted).
But since April is getting off on innocent spousery, the sustentation of the deficiency is a nonissue.
Of course, this leaves open the question whether the Year Two SNOD was served on Anthony’s last known address. Judge Nega says Anthony and April separated three years before IRS issued the second SNOD, and April was always timely with her tax filings. It seems Anthony never raised the issue, but he was pro se and April had attorneys from the Albuquerque Legal Aid LITC. Maybe Anthony only knew about the SNOD when April petitioned it and Anthony got the invitation to intervene. As we don’t know what Anthony filed, or when he filed, or from where he filed, the question remains.
As the sailors’ chorus sang in Act III, Scene I, of the original version of Ben Britten’s, Eric Crozier’s and E. M. Forster’s 1951 sea opera Billy Budd, “This is our moment we’ve been waiting for these long weeks.”
Yes, the ponderous doors of The Glasshouse on Second Street will swing slowly in the wind as they open on October 12, 2021 (a significant day in our family, but not for that reason).
The reboot kicks off with Facebook Inc., and Subsidiaries, but only litigants will be admitted, and no livestream will be provided.
Here’s the skinny from the Glasshouse website.
“In anticipation of its return to in-person proceedings, the Court has posted a new publication, Court Standards and Protocols to Protect Public Health. The Court has also posted Administrative Order 2021-02 which provides protocols for attending in-person proceedings in the Washington, D.C. courthouse. The standards and protocols from both documents will apply to the Court’s first in-person proceedings since March 2020, scheduled to commence on Tuesday, October 12, 2021, at 10:00 AM Eastern Time, in Docket No. 21959-16, Facebook, Inc. & Subsidiaries, Petitioner v. Commissioner of Internal Revenue, Respondent. Livestream audio is not provided for in-person proceedings. The United States Tax Court building remains closed to non-trial-related visitors. For more information, see the Press Release and refer to other materials available on the COVID-19 Resources page.”
So the doors reopen: stealthily.
Not the Las Vegas variant of Texas Hold ‘Em, rather some Section 6700(a) phony shelter-mongering, for which only the ten-year limit in Section 6502(a) applies. So says Judge Albert G (“Scholar Al”) Lauber; and if you ask why Judge Scholar Al is getting all these electrons, I answer that he’s writing the opinions, and the other Judges will get equal time when they put theirs online.
Here’s the Maltese Falcon, John M. Crim, 2021 T. C. Memo. 117, filed 10/4/21*. John is the Maltese Falcon, because he alleges he lived in Malta when he petitioned, 2021 T. C. Memo. 117, at p. 2..
I had a busy day yesterday and missed this one, as midnight fell before I could get to it, and the Genius Baristas and the 18Fs locked me out.
John went down for a six-stretch for flogging phony offshore trust deals. There’s argy-bargy about whether John got the NFTL whilst a guest of us taxpayers in Taft, CA, but he did get other mail from IRS and answered it.
And Judge Scholar Al throws a strike. ” The person with the most direct knowledge of whether petitioner received the… lien notice is presumably petitioner. His attorneys have filed mountains of paper in this case, but the one thing they have not submitted is an affidavit from petitioner himself averring, under penalties of perjury, that he did not receive the lien notice. Indeed, nowhere in the record is there any first-hand indication from petitioner himself that he did not receive that notice.” 2021 T. C. Memo. 117, at p. 12-13.
John’s trusty attorney (whom I’ll call Joe Di) tries the 28 USC §2462 five-year statute, but that’s for commencement of actions, suits and proceedings, and an assessment of Section 6700 chops is none of the above. And Section 6700 chops are applied to actions, not filing of returns.
The Maltese Falcon is grounded.
No, this is not a new flick, coming soon to the never-ending stream. This is the end of the story of Taryn L. Dodd, 2021 T. C. Memo. 118, filed 10/5/21.*
Of a surety y’all recollect Taryn? No? Then see my blogpost “Two Good Ones,” 8/22/19; IRS put four (count ’em, four) lawyers on a dead-loser summary J, when they should have put one SO who actually read the file on the CDP.
Well, Taryn got her shot, but loses.
Judge Albert G. (“Scholar Al”) Lauber man-‘splains.
Taryn was the office manager in a DC law firm specializing in real estate and construction (my kind of guys). Taryn and a name partner were members, and Taryn was the managing member, of an LLC that owned and operated rental real estate. Taryn’s stake was 33.5% of the capital account. Not bad for an office manager; in my checkered career I never saw an office manager get that kind of a piece of the action. And it was a mighty sweet piece, as you’ll see infra (as my expensive colleagues with a piece of the action would say).
As managing member, Taryn “…regularly signed agreements, tax returns, and other documents on [LLC]’s behalf. “2021 T. C. Memo. 118, at p. 3.
Taryn signed the loan agreement with the bank that provided financing for the LLC’s various properties. In year at issue, the LLC unloaded property to the tune of $4 million gross, net $3.203 million. The property secured the bank loan, so the bank had a due-on-sale in the agreement, and took a check at the closing. No bank I ever saw let the borrower walk from a sale with the scratch without taking a pound of cliché.
My jaggedly-sophisticated readers have already said “Phantom income,” without needing to see the title of this blogpost.
Taryn says she never got nuthin’ because the money paid off the law firm’s credit line. And the accountant who did her return (and the LLC’s box-checked 1065 and Taryn’s K-1) mistakenly gave Taryn $169K of tax. Except Taryn signed the line of credit (LOC) documents as “co-borrower and guarantor.” 2021 T. C. Memo. 118, at pp. 8-9.
“During the supplemental CDP hearing petitioner contended that the proceeds of [LLC]’s 2013 sale were used to pay off, not only LLC’s $1,843,758 loan from [bank], but also [law firm]’s $1.5 million LOC. But she offered no documentary evidence to substantiate the latter contention. The AO ultimately informed SO2 of her conclusion that petitioner ‘constructively received’ the $1,073,312 gain reported on her return and ‘will be taxed on it.’ Petitioner supplied SO2 with Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals. That form reported assets in excess of $300,000 but did not include as an asset her 33.5% membership interest in LLC. Upon review of petitioner’s financial information SO2 concluded that she could fully pay her… liability. ” 2021 T. C. Memo. 118, at p. 9.
Whatever the story with law firm’s LOC, Taryn’s claim (accommodation party? contribution? constructive trust? Good bar exam question) is a State law claim that Tax Court can’t consider.
Section 702 is clear: a partner owes the partner’s share of gain, whether they got cash or not. And Taryn apparently got $210K out of the sales proceeds, enough to pay the tax in full. 2021 T. C. Memo. 118, at p. 14. Doubtless the LLC operating agreement contained an anti-freeze clause (see my blogpost “Anti-Freeze,” 3/13/17).
Taryn could’a paid up. Appeals offered her an IA, but she said nothing for months, so Appeals kicked her yet again, and Judge Scholar Al is down with that.
Judge Patrick J. (“Scholar Pat”) Urda took the words out of my wordprocessor when he wrote today’s order in Sirius Solutions, L.L.L.P., Sirius Solutions GP, L.L.C., Tax Matters Partner, Docket No. 11587-20, filed 10/5/21.* Btw, a triple LP is one where not even the GP is personally liable.
Howbeit, the triple LP wants some 2014 tax returns sealed, claiming they contain personally identifiable information, disclosure of which “… presents serious privacy and security concerns and has the potential to do irreparable harm, particularly to the partners’ minor children.” Order, at p. 1.
IRS objects that “… the return information dates from 2014, which suggests that the information contained therein may no longer be sensitive. He also points out that the temporal interval may lessen concerns about children, some of whom (apparently) have achieved majority….. And he contends that similar privacy concerns to the ones raised by Sirius are present in nearly every case before this Court.” Order, at p. 1.
Yo, Genius Baristas, and 18Fs (if you’re still around), listen up! Pay attention to the man in the black robes.
“It would be helpful for the Court to hear from Sirius on these points, bearing in mind that the party seeking to seal the case must produce ‘appropriate testimony and factual data’ to support claims of harm that would occur as a consequence of disclosure…, and may not rely on conclusory or unsupported statements to establish good cause….” Order, at p. 1.
So, Genius Baristas and 18Fs, when you seal a whole docket containing dozens of orders theretofore public, because one item in said docket is sealed, come up with the appropriate testimony (sworn) and factual data to support what harm, if any, would occur if each and every other item were not sealed.
And don’t give us boilerplate conclusions.
Thank you, Judge Scholar Pat. I needed that.
No, this is not another taxed-as-a-partnership; this is the story of eighteen (count ’em, eighteen) Forms 211 unloaded on the Ogden Sunseteers by that indefatigable former GAO auditor and Master Hunch Merchant Suzanne Jean McCrory, 2021 T. C. Memo. 116, filed 10/4/21*.
Suzanne’s been here before: see my blogposts “Remand? You Can Whistle For it,” 1/31/18; “A Guide to Whistleblowers,” 3/18/19; “Follow-Ups,” 3/9/20; and “STJ Lew Stirs the Silt,”4/24/20. There, now.
Suzanne unleashed the Forms 211 in two packages, but based both sets on a “hypothesis” and publicly available information. The OS classifier prepared an Award Recommendation Memorandum for each, citing command codes for various databases which IRS maintains. Judge Courtney D (“CD”) Jones explains the Integrated Data Retrieval System (IDRS), the roadmap wherewith the classifier can check out what IRS did.
If alphanumeric babble floats your boat, check out pages 5 through 7 of 2021 T. C. Memo. 116, but at day’s end, all the classifier can find is that Suzanne’s hunches were wrong, or not specific or credible, or speculative. And the classifier checked the appropriate boxes on the ARM, showing which code groups were checked to generate the result.
Notwithstanding Suzanne’s claim that the OS bounced her claims because she used public information, “(N)one of the ARMs refer to the fact that petitioner’s allegations were based on publicly available information.” 2021 T. C. Memo. 116, at p. 9.
And the Sunseteers have adopted my advice. They labeled each bounce letter “‘FINAL DECISION UNDER SECTION 7623(a)’ and informed petitioner that ‘[t]he Whistleblower Office has made a final decision to reject your claim for an award.’” 2021 T. C. Memo. 116, at p. 10. No more epistolary volleying and counter-battery fire.
Suzanne’s claim that the proper bounce for some should be Section 7623(b), because they cleared the $2 million bar, but Van Bemmelen put paid to that. If the information isn’t specific or credible, or speculative, mox nix.
Suzanne also claims that when the classifier checked out IRS databases, taxpayer information is involved, and therefore her claim was denied, not rejected. Judge Gustafson had much to say about that; see my blogpost “Rejection and Denial,” 3/16/20. But every time a classifier checks out the database does not trigger a denial. “Indeed, IRS guidance directs classifiers to use all available resources, including IDRS and other databases, to evaluate every whistleblower claim. See IRM pt. 25.2.1.3.2(4) (Jan. 11, 2018).” 2021 T. C. Memo.116, at p. 22, footnote 25.
Whatever, Suzanne’s information was wrong, not credible or specific, or speculative, and the administrative record shows nothing to the contrary. And that is enough for Judge CD Jones.
I bet Suzanne takes an appeal.
Judge Travis A (“Tag”) Greaves has a bonus for the family lawyers (if we ever get back Section 215) in Charles H. Leyh, 157 T. C. 7, filed 10/4/21. Charles got health insurance for his loved-once through his employer’s Section 125 Cafeteria plan, and deducted those premiums as alimony (in a year when you could still do that). IRS said, no, double-dip, but Judge Tag says yes.
“…petitioner paid $10,683 for Ms. Leyh’s health insurance premiums as pretax payroll reductions from his wages through his employer’s ‘cafeteria plan’ (alimony payments). On his [year at issue] Form 1040, U.S. Individual Income Tax Return, petitioner excluded from his gross income the total amount of health care coverage premiums he and Ms. Leyh received through his employer’s ‘cafeteria plan’ (health insurance compensation) and also claimed an alimony deduction for the alimony payments.” 157 T. C. 7, at p. 3 (Footnotes omitted, but Charles and ex-Mrs. Charles filed MFS, per their separation agreement, pre-divorce, which was granted the next year).
“Petitioner received the health insurance compensation while Ms. Leyh was still considered his spouse as Pennsylvania law recognizes only divorce, not legal separation, and a final decree of divorce was not granted until [next year]. Consequently, there is no dispute that petitioner was entitled under sections 106 and 125 and the regulations thereunder to exclude from his gross income the health insurance compensation, including the portion covering Ms. Leyh’s health insurance coverage. Respondent, however, challenges petitioner’s attempt to also deduct the alimony payments.” 157 T. C. 7, at p. 5. (Citation omitted).
I’m sure my ultra-sophisticated readers already yelled, “Why not file MFJ? Premiums not income to either, and no income to ex-Mrs. Charles.” But here Charles gets the double-dip.
It’s the “alimony régime,” says Judge Tag.
“If a taxpayer pays alimony as defined in section 71(b), then the taxpayer may deduct such payments from gross income if the amounts are includible in the gross income of the recipient under section 71. Secs. 62(a)(10), 215(a) and (b).8 We are satisfied, and respondent does not dispute, that the alimony payments statutorily qualify as alimony and that Ms. Leyh was required to include these amounts in her gross income in accordance with section 71. In most cases there is little question as to whether the taxpayer may deduct a payment if it qualifies as alimony under the Code and is included in the recipient’s income. However, the facts here require us to consider another matter outside the statute: Did petitioner claim an impermissible ‘double deduction’ when deducting the alimony payments and excluding the health insurance compensation from his gross income?” Order, at p. 6.
Alimony reallocates income and deductions. If the parties have Mrs. Charles picking up the income, then Charles should get the deduction.
“As a married couple awaiting a final decree of divorce under Pennsylvania law, petitioner and Ms. Leyh could have chosen to file a joint return for [year at issue] and avoid the alimony regime altogether. If they had, they would have had an exclusion from gross income equal to the amount of the health insurance compensation, no alimony deduction for that amount, and no alimony income inclusion for that amount. Instead, petitioner and Ms. Leyh chose to file separately and treat the alimony payments as alimony. But for the alimony regime, Ms. Leyh would not have been required to include any portion of the alimony payments in her gross income. It follows that, per the general matching design of the alimony regime, if Ms. Leyh is required to include the alimony payments in her income, then petitioner should be permitted a corresponding deduction for those payments to preserve this equilibrium. In other words, petitioner’s alimony deduction should be properly viewed as being matched against Ms. Leyh’s alimony income, not against his excluded wage income.” 157 T. C. 7, at pp. 8-9.
IRS fights on: “Respondent points to a statement from the Senate Finance Committee describing the creation of the alimony deduction as an attempt by Congress to relieve a payor-spouse from the tax burden of whatever part of an alimony payment was ‘includible in * * * [the payor’s] gross income.’ S. Rept. No. 77- 1631, at 83 (1942), 1942-2 C.B. 504, 568. We believe, however, that this legislative history cannot be read to override the plain text of sections 62, 215, and 71 by interpreting these comments as imposing a precondition not present in the statutes themselves. These sections are clear that a payor of alimony may deduct such expenses to the extent they constitute alimony and are includible in the recipient’s gross income. Respondent recognizes that these elements are present in petitioner’s case by conceding that the alimony payments meet the section 71(b) definition of alimony and would otherwise be deductible under sections 62 and 215 but for petitioner’s exclusion of the health insurance compensation from his gross income. If respondent is concerned that petitioner’s situation might create an unanticipated statutory ‘loophole (which we do not believe is the case here), it would be up to Congress, not the Commissioner or this Court, to retroactively address.” (Footnote omitted).
Anyway, IRS can’t rewrite the statutes.
Section 265 does prohibit taking deductions with tax-exempt money, but here there is taxable income to ex-Mrs. Charles.
Judge Tag nails it.
“Neither the double deduction common law principle nor section 265 applies to prevent the deduction of alimony where a separated couple pending a final decree of divorce create an alimony pendente lite agreement that includes continued health care coverage as provided by the payor spouse’s employer, premiums for which are properly excluded from the payor’s gross income and included in the recipient spouse’s gross income. Accordingly, petitioner is entitled to deduct an amount equal to the alimony payments from his gross income.” 157 T. C. 7, at pp. 14-15.
Edited to add, 10/5/21: Of course my ultra-savvy readers have long since twigged to the fact that by filing MFS, ex-Mrs. Leyh’s net tax bite is way lower than Charles’, so the deduction helps Charles a lot more than the alimony income hurts ex-Mrs. Leyh. So I must infer that, in negotiating the break-up, ex-Mrs. Leyh got suitable off-tax-return compensation. And if my source got it right, Chuck Leyh is President and CEO of Enterprise Bank, and has forty (count ’em, forty) years’ combat time as a CPA, specializing in tax. So although pro se, Chuck didn’t need any help litigating this case. Chuck gets a Taishoff “Good Job, First Class.”
