Attorney-at-Law

Archive for the ‘Uncategorized’ Category

THE HUMAN COMEDY

In Uncategorized on 05/21/2020 at 16:46

Ya gotta love this stuff; I certainly do. The practice of law (and I suppose medicine, both on humans and animals) gives the practitioner a ringside seat on The Human Comedy, and often the human tragedy.

STJ Daniel A (”Yuda”) Guy draws a whistleblower that shows that the “small court” is often the stage where the Human Comedy is played out.

Rena Elizabeth Houston, a.k.a Tneka Rena Galloway, Docket No. 9869-19W, filed 5/21/20, got tossed by the Ogden Sunseteers without even an “and/or.” Brevity sure is the soul of wit in Lee Martin’s bailiwick.

“The Whistleblower Office has considered your Form 211, Application for Award for Original Information….Internal Revenue Code section 7623 provides that an award may be paid only if the information provided results in the collection of tax, penalties, interest, additions to tax, or additional amounts. The Whistleblower Office has made a final decision to reject your claim for an award.

“The claim has been rejected because the IRS decided not to pursue the information you provided.” Order, at pp. 1-2.

Rena/Tneka also petitioned an alleged NOD and an abatement of interest denial, but Ch J Maurice B (“Mighty Mo”) Foley tossed that one last year because no NOD was ever issued.

Rena/Tneka’s blower bœuf was also wide of the mark.

She claims a “…small municipality has been corrupted and ‘has not paid the judgment issued by [a State court] * * * nor has [the municipality] made any attempts to pay nor provide a judgment bond to pay for the physical damages they have cause [sic] to me’.” Order, at p. 2.

IRS moves to toss for failure to state a claim. Rena/Tneka fires back with an “’Amended Petition/Objection’ repeating the allegations that she made in the petition. Petitioner also filed two exhibits: A ‘Questionnaire for Public Servant’ and a ‘Violation Warning, Denial of Rights Under Color of Law’.” Order, at p. 2.

I’m sure we’ve all seen them in small claims part, or village court, or justice court, or in whatever it’s called in the jurisdiction in which you toil. They think it’s like television. Judge Judy, maybe.

STJ Guy has, I’m sure, seen it too.

“The petition in this case does not include allegations or statements necessary to satisfy petitioner’s burden of presenting a valid claim for judicial review under section 7623. Petitioner does not allege that she provided information to the IRS regarding an underpayment of Federal tax or violations of the internal revenue laws. Nor does petitioner allege that the WBO abused its discretion in rejecting her whistleblower claim or that the IRS erred in declining to pursue the information that she provided. Although we give petitioner the benefit of the doubt at this stage of the proceedings, and read her pleadings liberally, the allegations in the petition and amended petition/objection relate only to a complaint concerning enforcement of a State court judgment. The relief that petitioner seeks simply is not cognizable under section 7623. Because petitioner fails to state a claim for which relief can be granted, we shall grant respondent’s motion to dismiss.” Order, at p. 3.

La commedia è finita.

 

 

 

‘WHO ALSO STAND AND WAIT”

In Uncategorized on 05/20/2020 at 12:43

I wouldn’t be at all surprised if CSTJ Lewis (“I Just Love That Name”) Carluzzo didn’t think reflexively of Milton’s great sonnet as he crafted his order in Sungmi Bang, Docket No. 16550-19S, filed 5/20/20.

Sungmi wanted innocent spousery, and petitioned a non-NOD (maybe) IRS denial. IRS did deny one year, but there are two more hanging fire. IRS’ answer says no NOD as to the two, so toss because no jurisdiction.

“Petitioner does not seem to dispute respondent’s claim that a notice of final determination for [Year One] and/or [Year Two] has not been issued to her. We point out that respondent’s failure to issue a final notice of determination in response to a taxpayer’s section 6015 election or request for relief for any given year does not, as respondent’s motion proceeds, necessarily preclude the Court’s jurisdiction over that year for purposes of section 6015 relief. See sec. 6015(e)(1)(A)(i)(II). The Commissioner’s failure to act in response to a taxpayer’s request for section 6015 relief within a certain period allows the taxpayer to seek relief here.” Order, at p. 1.

Moreover, IRS’ non-NOD rejection of the two is dubious, at best.

“According to respondent, the [Year One] and [Year Two] request was ‘declined because a requesting spouse is barred from relief from joint and several liability under section 6015 by res judicata for any tax year for which a court of competent jurisdiction has rendered a final decision on the requesting spouse’s tax liability***.’” Order, at pp. 1-2.

OK, pop quiz. Whether or not this is indeed a NOD, what’s wrong?

If you answered, “res judicata (or claim preclusion) is an affirmative defense, not a jurisdictional bar,” you get an “A”.

“As indicated above, respondent’s motion also suggests that petitioner is barred from relief for [Year One] and [Year Two] by res judicata. See sec. 6015(g)(2). The application of res judicata, however, even if appropriate, does not operate to deny the Court’s jurisdiction over [Year One] and [Year Two] in this case. Res judicata is an affirmative defense.” Order, at p. 2. (Citations omitted).

Anyway, the no-NOD defense fails, if Sungmi can show she only stood and waited the six (count  ’em, six) months law that Section 6015(e)(1)(A)(i)(II) allows IRS to forgo the NOD and let an innocent spouser simmer before they can go to Tax Court.

But since no one has put in anything about the timing, IRS’ motion to toss for want of jurisdiction is itself tossed.

And I’ll even forgive CSTJ Lew for that “and/or” above.

 

“ARE YOU BEING SERVED?” – PART DEUX

In Uncategorized on 05/20/2020 at 11:43

The answer for Mr F. (name omitted) is “No,” and Judge Courtney (“CD”) Jones will tell you why not in Sunil S. Patel & Laurie McAnally Patel, et al., Docket No. 24344-17, filed 5/20/20.

It’s not that Mr. F shouldn’t be subpoenaed as a non-party witness. “Respondent represented, and petitioners did not dispute, that Mr. F served as a wealth management advisor to petitioners and, in that capacity, played a significant role in setting up the micro-captive arrangement.” Order, at p. 1. Clearly relevant and material, and Mr F as a non-party is not subject to a Branerton play-nice.

On background, micro-captives are purported insurers of a single enterprise, or controlled group of enterprises. Micros have often been used to take big deductions. Policies are massively overwritten (premiums greater than any actuarial risk). The micro then cookie-jars the “premium” cash against liabilities that (a) never happen, or (b) are laid off on macro insurers, so the micro runs no economic risk, thus not really insurance. Not saying that happened here; let’s see what happens as the case proceeds.

IRS first claims they served Mr. F, with the subpoena duces tecum, to show up and bring papers. Then they say, “sorry, my bad, didn’t serve.”

Judge CD: “the Court ordered respondent to file a copy of the subpoena duces tecum, including verification of the date of service. Respondent filed a response… admitting that he had not served the subpoena duces tecum on Mr. F, apologizing to the Court for the incorrect representation, and explaining how it occurred.” Order, at p. 1.

But IRS’ attorneys never lacked resourcefulness (some, less charitable, might say chutzpah, if you’ll pardon an arcane technical term). “He nevertheless asked the Court to compel a virtual deposition of Mr. F (in the light of concerns related to COVID-19), albeit without the documents.” Order, at pp. 1-2.

Now IRS did properly serve the Rule 74 deposition notice before COVID-19 shut everything down. So IRS’ counsel is not out on a limb when he asks for a Zoomathon sans documents.

But Judge CD says Rule 147 is not off the table.

“The record establishes that Mr. F’s deposition is warranted and that respondent served Mr. F with a notice of deposition…pursuant to Rule 74(c)(2). But respondent has not met the requirements of Rule 147 because he has not served Mr. F with a subpoena to require his testimony and/or production of documents listed in the attachment at the deposition described in the notice. As a result, respondent has not done what is necessary to compel Mr. F to testify and/or to produce documents at the deposition.” Order, at p. 2. (Name omitted, emphasis added).

Judge, two things bother me. First, IRS’ counsel doesn’t want no documents. Second, what’s with the “and/or” bit? See my blogpost “Ran the Checklist,” 4/6/20.

I praised you then, in these words. “Again Judge CD joins in rebuking the bureaucratic responsibility-ducking language of the form shootdown letter. “The WBO’s form letter contained the same ‘and/or’ conjunction that led to a lack of clarity in Lacey v. Commissioner, 153 T.C. __, __ (slip op. at 33) (Nov. 25, 2019). In this case, the record establishes that all of the reasons stated in the letter are justified. So the general lack of clarity attendant to the “and/or” conjunction is inconsequential here. But the Court continues to be concerned that, in a closer case, this form text may create confusion when we review a summary rejection of a whistleblower claim. See Alber v. Commissioner, T.C. Memo. 2020-20, at *8-9 n.5.” Order, at p. 2, footnote 5.” Loc. cit., as my high-priced Zoomer colleagues would say.

I most respectfully submit that this is a case where “and/or” definitely lacks clarity and creates confusion.

Of course, Judge CD is right about COVID-19. “Respondent’s failure to serve Mr. F. with a subpoena is made more problematic by the current crisis surroundingCOVID-19. The Court is concerned that it is not currently safe to serve him.” Order, at p. 2. Both the process server and Mr F are at risk with personal service.

But why deny IRS’ motion to take the deposition sans documents? Even without prejudice, as here, insisting on personal service of a subpoena that IRS is willing to do without only delays the case indefinitely. If IRS is playing games and seeking a double shot at Mr F, first without documents and then afterward with documents, then at that time a protective order requiring a showing of special circumstances for a rematch (and COVID-19 is expressly not one such), or a flat denial shuts the game down.

 

 

 

 

 

 

SCORERS’ NOTATIONS

In Uncategorized on 05/19/2020 at 19:25

I miss baseball. I’ll admit it has been a while since I did a full score of a game, forward K for struck out swinging and backwards K for caught looking, BB for walk (base on balls), and all that. And I’ll also admit I probably forgot a lot of notations.

But here are some of my notations from this blog, for those scoring, if any.

A Taishoff “Oh Please” comes in two classes; it’s given for particularly lame arguments or odiferous maneuvers. A Taishoff “Good Try,” again two classes, is given for an inventive ploy that fails, but really deserves praise. And a Taishoff “Good Job,” generally is given for a well-prepared and executed case, showing professionalism and class.

Today I have a Taishoff “Oh, Please” for IRS. The case is Robert J. Peacock and Bonita B. Peacock, 2020 T. C. Memo. 63, filed, 5/19/20. IRS wants to toss the Peacocks because Bob ponied up the claimed deficiency. Although IRS marked the check on their records as a deposit, and although Bob tendered the check with a four-page cover letter demanding a review by Appeals, IRS said “SNOD issued after payment was a mistake, no deficiency, no jurisdiction.”

Judge Vasquez is not impressed.

“Rev. Proc. 2005-18, sec. 4.01(1), states that a ‘taxpayer may make a deposit under section 6603 by remitting to the * * * appropriate office at which the taxpayer’s return is under examination, a check or a money order accompanied by a written statement designating the remittance as a deposit.’ Other than requiring a ‘written statement’ accompanying a check or money order, the revenue procedure does not specify how a taxpayer may designate a remittance as a deposit.” 2020 T. C. Memo. 63, at pp. 9-10. (Footnote omitted).

IRS says since Bob wrote “payment” on the memo line of his check, that means he paid. Judge Vasquez says, if no four-page letter that came with the check, it would be a payment. Except the letter makes it clear Bob wants to pursue the matter.

Judge Vasquez quotes the IRM even though it it’s neither law nor reg, to show how IRS expects its staff to deal with matters.

“Respondent asserts that the cover letter merely expresses disagreement with RA M’s determination. Respondent argues that an expression of disagreement ‘is not determinative of whether a remittance * * * [that satisfies] the underpayment in full should be treated as a payment or a deposit.’ However, petitioner husband’s letter did more than express disagreement. It also requested another meeting with the RA and stated that a request for Appeals review was forthcoming. These statements are as indicative of a desire to dispute a liability in prepayment forums as the term “Stop Interest”, which the IRM deems sufficient to denote a remittance as a deposit under section 6603. See IRM pt. 4.4.24.6.1(1). Accordingly, we hold that petitioner husband properly designated the remittance as a deposit under section 6603 and Rev. Proc. 2005-18….” 2020 T. C. Memo. 63, at pp. 12-13. (Footnotes  and name omitted).

Judge Vasquez makes it clear he isn’t deciding that just voicing disagreement in a transmittal letter makes a check into a payment and not a deposit. See 2020 T. C. Memo. 63, at p. 13, footnote 14.

And the IRS coded the check as a 640 (6603 deposit), and issued a SNOD.

The Peacocks win.

A Taishoff “Good Job” to The Jersey Boys, and a “Good Job” from Judge Vasquez.

“When this case was called from the calendar, Mr. Agostino and Mr. Colasanto were present in the courtroom as volunteer lawyers. They entered appearances on behalf of petitioner husband for purposes of arguing the motion before us, and we are thankful for their pro bono service.” 2020 T. C. Memo. 63, at p. 1, footnote 1.

 

 

 

 

 

A RARITY

In Uncategorized on 05/19/2020 at 18:28

Judge James S (“Big Jim”) Halpern is a stickler. The law is his guiding light, and steadfastly does he steer his course thereby. But today is a rarity. While he doesn’t vacate a stipulation, he pulls up a corner and tweaks it, in George E. Joseph, 2020 T. C. Memo. 65, filed 5/19/20.

George was an eye doctor with his eye on the prize, running Sub Ss and LLCs all over Northern Texas. He was a wee bit casual about filing returns, so IRS did a few for him, at no extra charge. And threw in some heavy duty chops for lagniappe.

George claims that the number to which he and IRS stiped double-counted about $18K in capital gains. He also claims that there is a mistake in the basis he had, because some deductible depreciation he was entitled to didn’t show up in that number either.

IRS agrees about the double counting, not the depreciation. The caselaw is very strict, and I’ve been over this a lot. Absent fraud or mutual mistake of fact, stips don’t get set aside. Even mistakes of law don’t do it, maybe. See my blogpost “The Busted Stipulation,” 1/20/12.

“…the record in the case before us makes clear that the stipulated amounts count the same capital gain twice. The double counting is not an unproven allegation but an established fact. To remedy that obvious error, we will disregard the parties’ stipulation that petitioner recognized $17,998 of capital gain for 2013….” 2020 T. C. Memo. 65, at p. 30.

Both parties agreed the number in the stip was wrong. They also agreed what number was right. No need to do discovery or to retry the case.

Deductible depreciation is another story.

George gave no numbers to support his depreciation claim, although he claims it is a “simple calculation.” And he knew from IRS’ request for admissions that depreciation and the amount of capital gains were on the table before he stiped. So this means “we would have to reopen the record ‘to determine how the gain was computed,’ which would involve ‘the production of additional documents and testimony’ from petitioner’s accountant and perhaps from petitioner himself. 2020 T. C. Memo. 65, at p. 32.

Not after trial.

But Judge Big Jim isn’t through. George has some deductions, defectively documented, that Judge Big Jim might be able to Cohanize, and thereby shave a couple bucks (hi, Judge Holmes) off George’s hefty deficiency.

Except. There’s a splash across the bows that isn’t a porpoise catching its breath.

“But petitioner did not invoke Cohan in his initial brief. And petitioner’s specific circumstances give us grounds to decline to rely on Cohan to estimate the amount of … deductible expenses that he failed to substantiate. As the Court of Appeals for the Second Circuit observed in Cohan v. Commissioner, 39 F.2d at 543, not only did the taxpayer in that case fail to keep account of his travel expenses; he ‘probably could not have done so.’ That observation suggests a limit on Cohan’s scope, under which estimating unsubstantiated expenses would be inappropriate when proper recordkeeping is feasible and can reasonably be expected. In fact, the Court of Appeals for the Seventh Circuit has recognized just such a limitation, identifying a trend under which Cohan, ‘while not * * * repudiate[d] * * * entirely, is * * * not invoke[d] * * * where the claimed but unsubstantiated deductions are of a sort for which the taxpayer could have and should have maintained the necessary records.’ Lerch v. Commissioner, 877 F.2d 624, 628 (7th Cir. 1989), aff’g T.C. Memo. 1987-295. Thus, we might justifiably decline to apply Cohan because petitioner could have kept adequate records. We do not take his failure to do so as the result of inevitable exigencies in the practice of ophthalmology.

“Respondent, however, accepts that we ‘may utilize Cohan to estimate some of petitioner’s expenses’.” 2020 T. C. Memo. 65, at pp. 40-41.

In this Technologic Age, when your FitBit measures how much you breathe each minute, and your smartphone takes your temperature hourly, and these synched-in doodads upload your whole life to the cloud and above, don’t count on the prehistoric technology of Cohan to bail you out. Or the IRS to continue to play nice.

 

 

 

 

“THOU BEHOLDEST THE WRONGS I SUFFER”

In Uncategorized on 05/19/2020 at 14:23

I venture no opinion whether it was Æschylus or his son Euphorion who put the original of those words in Prometheus’ mouth. The classical scholars on Tax Court bench are much more qualified than I.

But they certainly fit those who are locked out of Tax Court, and yet must file wet ink paper. STJ Diana L (“The Taxpayer’s Friend”) Leyden sums it up in Tavares Dunn, Docket No. 712-19SL, filed 5/19/20.

Tav is about to be tossed for failure to prosecute. But his reply to IRS’ motion was due after lockdown struck, so he gets another chance. He can also use eFiling.

“If petitioner has mailed a response the Court will not be able to read it because the Court is closed and cannot access mail sent to it.” Order, at p. 1.

I’m not claiming Tav is, or is not, an injured innocent, nor is STJ Di. But that’s not the point.

The point is that petitioners, worthy or unworthy, get a stay of collection when they petition a SNOD (Section 6213(a)), or a NITL NOD (Section 6330(e)). But there is no petition unless and until Tax Court gets it. So if the petition has to be wet ink snail mailed, Tax Court right now isn’t getting it. And a petition or amended petition can’t be e-filed, because the procedures in Rule 34(a) for e-filing haven’t been put in place.

I know I’m tiresome. But until someone can show me that my point is incorrect, I’ll keep at it.

“IT WAS CLEAR AS MUD BUT IT COVERED THE GROUND”

In Uncategorized on 05/19/2020 at 13:39

Judge Morrison has a redacted order and decision (hereinafter “order”) in Whistleblower 8001-14W, filed 5/19/20, that brings back the mellifluous sound of the late great Harry Belafonte, singing the song he and Jack Rollins wrote back in 1954.

It seems 8001-14W claimed the entire [blacked-out] was included in the claim. 2600 of whatever they were.

“…a Senior Tax Analyst with the Whistleblower Office, referred petitioner’s whistleblower claim to the IRS [blacked-out] Division. The referral letter enclosed the documents that had been given by petitioner to the Whistleblower Office to that date. In the referral letter C stated: the Whistleblower Office had determined that petitioner’s claim met the procedural requirements for submitting a claim, the determination did not mean that an administrative or judicial action must be taken to address the tax noncompliance alleged by petitioner, and ‘[t]he decision to proceed with an examination or investigation is solely under the jurisdiction of the Compliance functions.’” Order, at pp. 2-3. (Name omitted).

A sample taxpayer was selected, and someone sent an audit letter with an IDR. Whoever got whatever, and something happened.

“In [blacked-out], Revenue Agent [blacked-out] met with (1) [blacked-out] and (2) [blacked-out] in the IRS Office of Chief Counsel. The conferees concluded that due to legal issues, evidentiary problems, and agency resources, it would be futile to pursue the issues that petitioner had raised about the sample taxpayer.

“On [blacked-out] Revenue Agent [blacked-out] met with his manager, [blacked-out], agreed that the examination of the sample taxpayer should be closed without changes.

“In [blacked-out] made the following statement at [blacked-out].” Order, at p. 5.

And I think we can stop here, with Harry singing. “And the confusion made the brain go ’round.”

 

 

 

 

THE 12257 TRAP

In Uncategorized on 05/18/2020 at 17:45

Here Be Dragons

Here’s a heads-up. Form 12257, Summary Notice of Determination, Waiver of Right to Judicial Review of a Collection Due Process Determination, and Waiver of Suspension of Levy Action, is an IED that blows up twice, and Abigail Richlin, 2020 T. C. Memo. 60, filed 5/18/20, gets nailed both times.

Abi’s trusty attorneys argue that the 12257s Abi signed at Appeals are contracts (they aren’t; only IAs, Section 7122 closing agreements, and OICs are). While IRM says Appeals can’t revoke a NOD, 12257s aren’t NODs.

Then they argue equitable estoppel. No, because Abi didn’t change her position in reliance; long before she went to Appeals, she spent the sales proceeds from her separate property, leaving deceased ex-spouse’s estate to pick up the tax, notwithstanding the pre-nup and her testimony on the divorce trial.

The question was certain estimateds paid by late spouse from trust he controlled. Appeals erroneously twice allowed them for Abi, who signed a 12257 each time, and never put forth collection alternatives, even though her Letter 12153s said she couldn’t pay. She stood pat on her trusty attorneys’ reading of the divorce decree.

Except Judge James S (“Big Jim”) Halpern isn’t buying.

Even though Appeals got the facts wrong, the pre-nup controls. Reg. 1.6654- 2(e)(5)(ii)(A) says the parties filing MFJ can whack up payments as they agree. And they did.

Family lawyers, watch those divorce decrees and separation agreements. And all lawyers, watch those 12257s; they can be boobytraps.

 

NO REFUND, NO DEFICIENCY

In Uncategorized on 05/18/2020 at 16:57

The Jersey Boys get the tough ones, and Lord S. Pope, 2020 T. C. Memo. 62, filed 5/18/20, is no exception. IRS refunded Lord his overpaid withholding, but denied his child care and child tax credits. That’s $7800, and Lord wants a refund.

But he won’t get it from Tax Court. These aren’t refundable credits, they’re withholding credits.

Judge Albert G (“Scholar Al”) Lauber has this one.

“Section 6212(a) authorizes the IRS to send the taxpayer a notice of deficiency, and section 6213(a) grants this Court jurisdiction to make a ‘redetermination of the deficiency’ determined by the IRS. A ‘deficiency’ is defined as the amount by which the tax imposed for the year (i.e., the correct amount of tax) exceeds ‘the amount shown as the tax by the taxpayer upon his return’ plus any ‘amounts previously assessed * * * as a deficiency.’ Sec. 6211(a)(1). Section 6211(b)(1) in turn provides that ‘the tax imposed * * * and the tax shown on the return shall both be determined * * * without regard to credit under section 31.’ Section 31, captioned ‘Tax withheld on wages,’ provides: ‘The amount withheld as tax [by an employer] under chapter 24 shall be allowed to the recipient of the income as a credit against the [income] tax.’ Sec. 31(a)(1).

“Because the correct tax for the year and the tax shown on the return are both determined ‘without regard to the credit under section 31,’ withholding credits (and overstatements thereof) are necessarily excluded from ‘deficiencies’ as defined by section 6211(a)(1). And because our jurisdiction as relevant here is limited to ‘redetermination of the deficiency’ determined by the IRS, we lack jurisdiction to redetermine an adjustment to withholding credits.” 2020 T. C. Memo. 62, at p. 6. (Citation omitted).

Section 6201(a)(3) says that withholding credits can be assessed like arithmetic mistakes, thus no SNOD and no jurisdiction in Tax Court. And while the statute also says the overstated withholding credit may be assessed like a deficiency, here the overstated withholding was summarily assessed six months before IRS issued the SNOD.

But was what IRS gave Lord a SNOD? There’s a two-part test from Dees, a case I did not blog (but see my blogpost “Is It or Isn’t It?” 3/6/18).

First, does it look like a SNOD (remember, there’s no required form a SNOD must take, just tax, year, and call TAS)? Next, if ambiguous, the party seeking to establish Tax Court jurisdiction must show that IRS did establish a deficiency and that the party seeking jurisdiction wasn’t misled by the ambiguous document.

Well, here there was no refundable credit, so no deficiency, and the Letter 4800C, Questionable Credit 30 Day Contact Letter that Lord got wasn’t a SNOD. IRS says it is “the initial contact for the Automated Questionable Credit Program on fraudulent wages, withholding, or noncompliant credits.” 2020 T. C. Memo. 62, at p. 3.

Lord wasn’t misled, because he petitioned.

Section 6512(b)(1), the overpayment jurisdictional grant, requires a deficiency, and there’s none here. Section 6512(b)(1) is not basis for a stand-alone overpayment case.

Tough loss. On a pro bono yet.

THE ROCK OF SVITHJOD

In Uncategorized on 05/18/2020 at 14:56

“High up in the North in the land called Svithjod, there stands a rock. It is a hundred miles high and a hundred miles wide. Once every thousand years a little bird comes to this rock to sharpen its beak.

“When the rock has thus been worn away, then a single day of eternity will have gone by.” Hendrik van Loon, The Story of Mankind, 1921.

I feel a kinship with those little birds. When I make suggestions for more user-friendly Tax Court rules and procedures, I feel as if I am trying to wear away that rock in Svithjod, just like those little birds.

Notwithstanding my apparently futile efforts, I have for my text today Judith I. Napoleon and George Napoleon, Deceased, Judith I. Napoleon, Successor In Interest, Docket No. 981-20, filed 5/18/20.

Judith petitioned a SNOD, but was the sole signer. Her trusty attorney then appeared, and Judith moved to change the caption and sub in for the late George. Motion granted.

Ch J Maurice B (“Mighty Mo”) Foley also told Judith to file a ratification of petition as successor-in-interest.

Judith did so this past Friday. “Judith I. Napoleon electronically filed a Ratification of Petition …. …Judith I. Napoleon further electronically filed a Certificate of Service in connection with her … ratification of petition.” Order, at p. 1.

Ch J Mighty Mo: “A ratification of petition may not be electronically filed, but must instead be filed in paper form and bear the original signature of Judith I. Napoleon as decedent’s successor in interest. See Tax Court Rule 26(b)(1).” Order, at p. 1.

And the electronic filings are stricken.

OK, but how is Judith to do this filing? She can snail mail or PDS the documents, but as Tax Court is closed (and has been since mid-March), what happens if no one is present to receive them? The press release of 3/23/20 says mail will not be delivered to Tax Court. Various orders from various judges and STJs state that the mailings will be returned to sender, who can then re-mail them when Tax Court reopens, with the original envelopes to establish date of initial rejected mailing enclosed therewith.

I most respectfully suggest that this is wasteful. We just had Judge Gale point the way. “While petitioners’ electronic filing of the ‘Expert Report of B’ as an attachment to petitioners’ Report filed March 30, 2020, violates Rule 143, we nevertheless conclude that compliance with the mailing requirement is infeasible with mail delivery suspended.” See my blogpost “The Octavia Rules,” 4/1/20.

And lest anyone think that was an April Fools’ joke, they can look it up.

Compliance with the mail rule is admittedly infeasible.

Rule 34(a) as amended provides the solution: “A petition may be filed electronically under the electronic filing procedures established by the Court, or a petition may be filed by properly mailing or hand delivering it to the Court.”

So establish the procedures. They can be temporary for the duration of the pandemic, or until further order of the Court. I suggest having the filing electronically, with the original to be sent to Tax Court when it reopens. But almost anything is better than double mailing.

And thinking about lone birds and eternity, there are all kinds of Bar associations, with foci on geography (States, counties, cities), ethnicities, genders, and even courts and areas of practice. There’s a USCFC Bar Association and a Federal Bar Association. But there is no United States Tax Court Bar association.

Why not? One bird amounts to nothing. A flock is different. Enough birds, and even the Rock of Svithjod might have to yield a lot sooner.

 

 

 

 

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