Sometimes the weight of the silt he stirs, to say nothing of writing like a human being, overtaxes the patience of The Great Dissenter/ Concurrer, Judge Mark V. Holmes.

Another leftover from the now-historical Virginity (Islanders) unguided Congressional largesse has reduced Judge Holmes to asking the parties to help him out.

Here’s Carrie L. Smith, Docket No. 19444-12, filed 2/2/18. Apparently Groundhog Day has so diverted the Glasshouse Gang that neither opinion nor designated hitter appeared.

Carrie was waiting for Coffey to be decided. Well, Judge Holmes got that one off the plate on Tuesday last; see my blogpost “Another Non-Virgin,” 1/30/18.

So Judge Holmes had a phoneathon with all parties, and tells them to “…file a status report suggesting how to bring this case to a conclusion, perhaps by cross-motions for summary judgment or trial on the residency issue or a stipulation to be bound by any final nonappealable decisions in the Coffey cases.” Order, at p. 1.

The immortal Estelle Reiner line from the 1989 comedy When Harry Met Sally immediately comes to mind.

Here’s a treatise I’d like to have handy, and that Obliging Jurist, Judge David Gustafson, has written a page thereof in Gwendolyn L. Kestin, Docket No. 18254-17L, filed 2/1/18.

Gwen is a firm believer in laying it all out. “…petitioner filed her petition (ECF 1). Its first two pages are the standard form petition, which she had filled out. On that form she refers to an ‘attached petition’, which evidently consists of the 121 additional pages that follow the form, containing argument evidently composed by petitioner, pages from the Congressional Record, pages of legislative history, correspondence with the IRS, copies of transcripts of account, and other documents. One of the documents included in her petition stated a website address, but a letter was evidently left off the address.” Order, at p. 1.

So Gwen makes a motion thus entitled: “Motion for Clerk to Amend Petition as Requested in Petitioner’s Reply to Respondent’s Response” (ECF 20).”

Judge Gustafson deems that to be a Rule 41(a) motion to amend petition, which he denies as moot.

The Clerk sent Gwen the usual “this might be evidence. Evidence gets put in at trial. Filing it with the Court does not put it in evidence.”

Then Gwen asks that her 121-page masterpiece not be excluded, and put in the missing letter, please.

Judge Gustafson on evidence: “Petitioner evidently misunderstood the Clerk’s notice. It did not have the effect of deleting the 121-page attachment from her petition. Rather, the notice correctly advised petitioner that the inclusion of the documents in her petition did not have the effect of admitting them into evidence. Instead, if there is any relevant document in her petition, then petitioner’s occasion to offer it into evidence will be at the trial of her case.

“Petitioner’s correction of the website address now appears in the record, by virtue of her motion to amend. There is no need to formally amend the petition to correct this detail. When the time is ripe for petitioner to cite this webpage (e.g., in her pretrial memorandum), she may do so (with the correct address, of course).” Order, at p. 2.

Now I’m not saying Gwen is a rounder. But it seems that 120-plus pages are almost the rounders’ flavor du jour. See my blogpost “The Jolly Rounder,” 3/16/15, where the number was 129 pages.

Halloween comes early for The Great Dissenter/Concurrer, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a Master Silt Stirrer and Old China Hand, Judge Mark V. Holmes.

Today his designated hitter strikes our old chums Kumar Rajagopalan & Susamma Kumar, et al., Docket No. 21934-11, filed 1/31/18. Y’all recall Kum and Sus, no? Well, for those recently tuned in to this my blog, check out my blogposts “Have a Heart, Guys,” 12/5/17, “Back From the Graev –Part Deux,” 7/9/15, and “Old-Time Head-Banging,” 6/5/15.

And my posts are going up late at night due to flu season and other ills that flesh is heir to.

Anyway, Kum and Sus are fighting about conservation easements, “…but penalties — and the Commissioner’s compliance with I.R.C. § 6751(b)(1) — have thus far taken center stage. We’ve already decided that it’s too late for the Commissioner to introduce additional evidence that he complied with § 6751(b)(1) for the 40% gross-valuation-misstatement penalties raised in his amended answers. See Rajagopalan v. Commissioner, Docket No. 21394-11, Order, Dec. 20, 2017. (We note, however, that he did produce some evidence of that compliance which the parties analyze in their posttrial briefs.) Now he asks us to reopen the record to let in evidence to show that he complied with that section for the 20% accuracy related penalties determined in his notices of deficiency. Petitioners object.” Order, at p. 1.

I missed the shoot-down of the 40% chop, but not surprising. I was Graev’ed out, as the IRS scramble to come up with Boss Hossery for cases long tried and awaiting opinion had turned into The Scramble of the Year.

Anyway, nobody raised Boss Hoss at the trial, but Kum & Sus mentioned it in their posttrial brief. Moreover, Kum & Sus FOIL’ed the IRS file and found a Boss Hoss for their partnership, but not them. IRS said mox nix, negligence applies at partner level. Oh TEFRA, thy sins survive thine exit.

So everybody knew about Boss Hossery, even though the trial was pre-Graev. But this is a close call.

And Judge Holmes predicted that, if a trial record was reopened for 20% chops but the Section 6751(b) signoff was for negligence, what about accuracy (the five-and-ten)?

Judge Homes said both sides were less than diligent for leaving out Boss Hossery on the trial. The evidence IRS wants to put in is business records properly authenticated, unlike the hearsay affidavit on the 40% chop. Kum & Sus yell “prejudice,” and failure to provide FRE 902(11) notice that they’re going to enter business records, but the evidence would change the outcome of the trial and is admissible. And 902(11) isn’t an insuperable obstacle. And it isn’t hearsay, like the 40% chop affidavit.

“But the penalty-approval forms here are different. They are evidence that we would likely have admitted at trial under the business-records exception to hearsay — just as we are doing now — and it is unclear how petitioners would’ve benefitted from cross-examination. Petitioners don’t make a convincing case that introducing these forms at trial would’ve made any difference to them: They primarily argue that they should be ‘entitled to question’ the supervisor and subordinate to confirm that the penalties ‘were properly asserted and whether [the Commissioner] complied with Code section 6751(b).’ The penalty-approval forms either answer those questions or they don’t; once they are in under the business records exception, they are in. And we can’t conclude this time that petitioners would be prejudiced.” Order, at p. 3.

True, IRS was slow-footed. But this was pre-Graev, so no one knew whether it was burden of production on IRS or affirmative defense on Kum & Sus. And Kum & Sus knew what was what when they FOIL’ed the IRS record, but didn’t raise it on the trial.

But to answer Judge Holmes’ hotly burning question, the penalty-approval forms are in… but only as to negligence, not accuracy.

So record closed, and time for opinion.

Suzanne Jean McCrory, 2018 T. C. Memo. 12, filed 1/31/18, wants a remand to IRS (not Appeals). Suzanne is a whistleblower. IRS claims they started no proceedings and got no loot.

Suzanne is an ex-GAO auditor. Surmising that recipients of multi-million-dollar wrongful incarceration awards weren’t reporting same, she unloaded 18 or so Forms 211, after strip mining public info. She told IRS she was “operating on a hunch” and had no specifics, 2018 T. C. Memo. 12, at p. 3.

IRS blew it all off. Most of Suzanne’s claims were facially deficient, and IRS began no administrative action as to the rest.

Suzanne wants a do-over. IRS should reconsider whether to start administrative proceedings, and Judge Vasquez should tell them so.

“This Court has not yet decided whether it can appropriately order a remand in a whistleblower case. However, a remand is not appropriate in this case. While we believe petitioner’s concerns about the efficacy of third-party income reporting are sincere, we cannot grant her the relief she seeks. As we previously stated, section 7623(b)(4) does not contemplate that we review the IRS’ determinations of taxpayers’ liabilities or direct the IRS to commence an administrative or judicial proceeding. Granting petitioner’s remand motion would be akin to directing the IRS to commence an administrative proceeding against taxpayers it chose not to pursue.” 2018 T. C. Memo. 12, at pp. 8-9.

No remands,  however hard you whistle.

Post-event statements may save your deficiency, but won’t get you section 7430 admins and legals. David L. Bruner, 2018 T. C. Memo. 10, filed 1/30/18, has his 50% partner come in with an affidavit confirming the oral special allocation that got Dave a bigger split of the pension plan deduction in their LLC.

But when IRS audited the LLC, Dave handed over the operating agreement and five (count ‘em, five) amendments. None thereof spoke to the special allocations for the years at issue. It was only post-SNOD, post-petition and post-answer that Dave proffered the affidavit of his 50% partner, affirming Dave’ story that they had an oral agreement.

IRS bought it, but claimed the earned income limitation in Section 404(a)(8)(C), and bounced part of Dave’s specially allocated deduction for one year at issue.

Dave and IRS stiped out all the issues except admins and legals.

Now all readers of this my blog know very well that “substantially justified” means based on what was known to IRS at certain times in the proceedings.

Judge Lauber instructs: “For purposes of the administrative proceeding, the IRS’ position is that taken at the earlier of: (1) the date the taxpayer receives the determination of the IRS Appeals Office or (2) the date of the notice of deficiency.  Sec. 7430(c)(7)(B). For purposes of a Tax Court proceeding, the IRS’ position generally is that taken at the time the Commissioner files his answer.” 2018 T. C. Memo. 10, at p. 11.

Dave waited five (count ‘em, five) months after the last of said dates to proffer his partner’s affidavit. No admins or legals for Dave.

This is pretty cut-and-dried, but what is interesting is what Judge Lauber doesn’t decide.

For admins and legals there is the $2 million net worth tripwire. If net worth jumps that hurdle, no admins and legals for the “prevailing party,” however far out to lunch IRS might have been.

But whose net worth? We have here an LLC and an individual member (partner).

The magic language is not found in the IRC, but in 28 USC §2412(d)(2)(B). “‘(P)arty’ means (i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed, or (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the civil action was filed….”

Dave says “yeah, my net worth was greater than $7 million at the material time, but the LLC’s wasn’t.” IRS says, “OK, Dave, but you were an owner of the LLC at those times.”

So what price the comma after the word “business” and the relative pronoun “of which?” Should be time for a great dictionary chaw and psycholinguistic foxtrot through Grammerly, Strunk & White, the Chicago Manual and the U.S. Gov’t style manual.

But Judge Lauber punts. Even assuming Dave’s argument is correct, his belated affidavit from his partner came too late.

“Given our disposition, we need not decide this threshold question.” 2018 T. C. Memo. 10, at p. 9.

Islander

She’s starred in my blogposts “Somebody Does Read This Blog,” 12/4/11, “A Word to a Reader,” 7/3/13, and “Somebody Does Read This Blog – Part Deux,” 6/14/14. And she finally slides in under the IRS tag, as Judge Mark V. Holmes extends his arms, palms down.

Here’s Melissa Coffey Hulett a.k.a. Melissa Coffey, et al., 150 T. C. 4, filed 1/29/18, but this full-dress T. C. concerns Judith Coffey, who wins summary J based upon SOL. And of course the Government of the U. S. Virgin Islands, devastated but game, are in on the play.

Judith filed 1040s for years at issue with Virgin Islands Bureau of Internal Revenue. She sent them to the right service bureau. The 1040s had the requisite information and were timely. The point, of course, is whether Judith was a bona fide Virgin Islander. If so, she got the unguided largesse that Congress bestowed upon Our Insolvent Islands in the Sun, but that IRS denounced as a gimmick.

IRS claims Judith never filed with them. “…some VI residents have to file only with the VIBIR, some VI residents and some VI nonresidents have to file with both the VIBIR and the IRS, and some VI nonresidents have to file only with the IRS.” 150 T. C. 4, at p. 7.

Judith filed only with VIBIR, claiming to be a bona fide resident and partner in a partnership doing the same stuff (but in the VI) that she did Stateside. And VIBIR forwarded Judith’s tax doings to IRS per “…the Tax Implementation Agreement (TIA), U.S.-V.I. (Feb. 24, 1987), 1989-1 C.B. 347. Pursuant to the TIA, the United States and the VI will share information to administer and enforce their respective tax laws. Id. art. 4(1), 1989-1 C.B. at 348. Also, the VI will supply the United States with ‘copies of reports of individual * * * audit changes that disclose information relevant to the United States.’ Id. art. 4(2)(b), 1989-1 C.B. at 348-49. The TIA provides that the VIBIR will allow the IRS to examine VI tax returns. Id. app. A, sec. 3.1, 1989-1 C.B. at 352.” 150 T. C. 4, at pp. 9-10.

Now the VI is supposed to get what IRS collects from bona fide VI residents, via the “covering over” process, whereby VIBIR electronically forwards the taxpayer info it got from said residents to IRS, to make sure VIBIR gets the loot.

The IRS got copies of at least part of Judith’s 1040s for the years at issue. Sometimes VIBIR sent only the first two pages of Form 1040, and sometimes the full boat. In Judith’s case, they got at least the two pages (Judge Holmes reprints them for one year), and created statements of account based thereon (also reprinted).

Judith (and the USVI) claimed good faith belief that one was a VI resident was good enough for SOL, if one properly so filed. Tax Court said this was a question of fact, but Judith (and USVI) riposted that even if they were supposed to file both with IRS and VIBIR, when VIBIR “covered over” the returns to IRS, that was in all respects filing of a return. When IRS audited and issued SNODs five years later, they were too late.

As for the good faith belief argument, 11 Cir blew that off, and Judge Holmes won’t go further.

But was there a “return,” and was it “filed”?

Well, they filed a return, because it was on the right form, and provided at least enough information for IRS to audit it. It was signed under penalty of perjury, and evinced a good faith effort to comply with law.

And ultimately it got to the right place via the “covering over” procedure.

But was it processable? A return may omit schedules, but permit mathematical verification of the information reported thereon. A return may not be perfect, and may not even be complete, but can IRS compute a liability from what was furnished? Even if the computation is wrong; a fraudulent return is still a return.

“What do the undisputed facts here show? They show first of all that the IRS had enough to create a transcript of account–albeit one with zeros on almost all the lines. This is telling because, one should recall, the IRS’s answer to the question at oral argument of what the Coffeys should have filed if they weren’t sure they were residents was that they should have filed a return with all zeros. At the time the Coffeys actually filed their returns with the VIBIR this wasn’t the official word of the IRS–rather at oral argument, IRS counsel stated that the protective zero return was ‘[his] little baby.’ But not too long afterward, the IRS did issue Notice 2007-19, 2007-1 C.B. 689, which also said taxpayers in the Coffeys’ position should file zero returns.

“And what the IRS actually got had more information than any zero return.” 150 T. C.4, at p. 42.

“The IRS wants returns on the forms it prescribes, and it got that form–at least a good part of it–here. There is no question that the IRS was clueless about how to handle what it got–but the undisputed facts show that the IRS was able to stamp it received, summarize its contents in its Individual Master File, and open an audit in due course; it just didn’t issue the notices of deficiency before the statute of limitations ran out.” 150 T. C. 4, at p. 45.

And if it looks honest, even if it isn’t, it’s a return. The processing crew at IRS deals with millions of returns and non-returns. They can’t delve into the minds of millions of taxpayers to determine good faith belief.

IRS argues Judith should have filed an “all zeros” return with them. But how an “all zeros” return is a return, when all the protester cases say it isn’t, is nowhere explained.

Now it’s true what IRS got was not a return with a “wet ink” manual signature. And Judge Holmes is careful to state that, although the IRC doesn’t require same, we should not overlook that principle. A signature means “this is my return and I really mean it.” But here IRS got a document authenticated by VIBIR.

“To sum it up, the IRS failed to promulgate mandatory regulations under section 932, failed to tell taxpayers that they should file protective zero returns, and failed to send the Coffeys a notice of deficiency within three years of receiving the cover-over documents. And, only a few short years later, the IRS finally did promulgate regulations that adopt precisely the position that the Coffeys took about how to start the statute of limitations.” 150 T.C. 4, at p. 58.

Now Judge Holmes and the Tax Court bench aren’t ruling on whether Judith and mishpocha (if I may be permitted an arcane technical term) are bona fide Virgin Islanders. But IRS could’ve challenged that, because they had processable info, but waited too long.

IRS is out.

Chief Whistler Lee D. Martin wants to prove Stephen Sondheim right, and he claims a better batting average for the Ogden Sunseteers than Steve had in 1964, when his now-cult musical entitled as above-stated cratered. “In FY 2017 the Whistleblower Office made 242 awards to whistleblowers totaling $33.9 million dollars and had a 50 percent increase in IRC § 7623(b) awards paid.”

How d’ya like those numbers? Here’s the whole scoop.

Click to access fy17_wo_annual_report_final.pdf

Obviously Judge James S. (“Big Jim”) Halpern needn’t worry about how the Ogden Sunseteers are handling the public’s resources. See my blogpost “A. Nonymous, Serial Blower,” 6/28/17.

I do have sympathy for that Obliging Jurist, Judge David Gustafson, when confronted with Cecil K. Kyei, Docket No. 9118-12, filed 1/26/18.

CKK’s tactic seems to be to enter into a stipulated decision after he files Chapter 13. Then the stipulated decision is tossed on 11USC§362(a)(8) grounds, whereupon CKK stipulates again, and files Chapter again.

Nice.

So Judge Gustafson gets a little bewildered. “On June 8, 2015, the parties filed a stipulation (ECF 20) reflecting a settlement of the case, and on June 25, 2015, the Court duly entered decision (ECF 23). However, on November 18, 2015, respondent filed a motion to vacate (ECF 24), advising the Court that petitioner had filed a bankruptcy petition on November 17, 2015 (i.e., before June 2015, when the parties filed their stipulation and the Court entered its decision). Because the automatic stay of 11 U.S.C. § 362(a)(8) had deprived this Court of jurisdiction to enter decision in this case, we vacated the decision by order of November 23, 2015 (ECF 25).” Order, at p. 1.

Judge, I think you meant that CKK filed his petition on November 17, 2014, which is definitely before June 25, 2015, and not November 17, 2015, which isn’t. CKK’s in-again, out-again would confuse anyone.

So after that bankruptcy proceeding was tossed, IRS tried again to file a motion for entry of decision before CKK hit the Bankruptcy Court NDGA yet again.

But IRS is now farblungeit, if I may be permitted an arcane technical term.

“The motion as it appears on the Court’s electronic record is evidently missing multiple pages, because the motion consists of numbered paragraphs that skip from 2 to 17. The motion alleges that ‘respondent’s counsel has not received a reply [to an unspecified communication] from petitioner’, and that ‘Petitioner’s telephone number remains out of service.’ The motion requests ‘that the Court enter a decision in this case pursuant to the agreement of the parties and in accordance with the attached decision document’ (i.e., ECF 23). As far as we can tell, the motion relies solely on the alleged agreement of June 2015 and not on any default or lack of prosecution under Rule 123(a) or (b).” Order, at pp. 2-3.

Judge Gustafson, now thoroughly befogged, failed to notice that the agreement IRS was relying upon was the June 2015 stip which was voided per the automatic stay. In an earlier order, Judge Gustafson ordered CKK to show earlier this week to argue about entering a decision.

Of course CKK didn’t show. And if the agreement IRS relied upon was void, why should CKK waste time? Even if decision was entered by default, it was still void.

So Judge Gustafson tells IRS the ”… motion for entry of decision is denied without prejudice to the filing of a motion that is complete and that explains how an agreement entered into in June 2015 would not have been void by virtue of the automatic stay.” Order, at p. 2.

And both IRS and CKK should ”…make an appropriate filing, which shall include the party’s recommendation as to further proceedings.” Order, at p. 2.

My morning line is 8 to 5 for the Bankruptcy Court for the Northern District of GA.

Like Judge Ruwe in my blogpost “Amen, Judge Posner,” 12/22/16, Judge Foley eschews factors, “somber reasoning and copious citation of precedent” and the usual laborious trudge through Reg. 1.183-2 (which Judge Posner characterized as “goofy”) in Joy Ford, 2018 T. C. Memo. 8, filed 1/25/18.

This my blog comes to you late due to hospitality at the annual meeting of the New York State Bar Association (thanks again, Steve), and intermittent connectivity breakdown from the Glasshouse website, being laboriously restored by the Second Street, NW Genius Bar.

Joy is a former country music recording artist, who, with late husband Sherman buys, and thereafter due to trust finds and brokerage account pours copious quantities of money into, Bell Cove Club in Hendersonville, TN. This is a country music showcase for songwriters and performers, to enable and invigorate the music Joy so much loves.

Admission charges and snack and beverage sales don’t begin to cover payments to the wannabes and headliners, and general operating costs. And her recordkeeping was a wee bit casual.

“Petitioner maintained incomplete handwritten ledgers and sporadically retained receipts relating to Bell Cove’s expenses. Her records, however, bore no relationship to the income and expenses reported on her returns.” 2018 T. C. Memo. 8, at p. 3.

Joy talked to a television producer to try to do a show from the club, but that was just talk, and Joy didn’t follow the advice of business experts who told her to run a proper seafood restaurant.

So Judge Foley don’t need no stinkin’ factors.

“In short, petitioner did not have the requisite intent to make a profit and thus may not deduct the losses in dispute. She had no expertise in club ownership, maintained inadequate records, disregarded expert business advice, nonchalantly accepted Bell Cove’s perpetual losses, and made no attempt to reduce expenses, increase revenue, or improve Bell Cove’s overall performance. Owning Bell Cove elevated petitioner’s status in the country music community, allowed her to further the careers of young performers, offered her weekly opportunities to interact with country music fans, and satiated her love for promoting country music. Petitioner earnestly devoted time and energy to Bell Cove but was primarily motivated by personal pleasure, not profit, and simply used the club’s losses to offset her trust and capital gain income.” 2018 T. C. Memo. 8, at pp. 5-6. (Citations and footnotes omitted).

Joy claimed some NOLs, but had no proof.

But Joy misses the chops, as IRS flunks the Graev Section 6751(b) Boss Hoss test; Judge Foley doesn’t play around with keeping the record open for IRS to dig for evidence.

It’s the straight-from-the-shoulder approach that Judge Posner would love.

Going to the mat doesn’t help James S. Plato, 2018 T. C. Memo. 7, filed 1/24/18, but IRS’ fumbles still save him some money. Plato, separated from Mrs. Plato (first name not stated), left the prepared tax return for year at issue, and check for payment of tax thereon shown “under the mat at the front door” of his wife’s residence, and told Mrs. Plato to mail same to IRS, 2018 T. C. Memo. 7, at p. 3. Plato also subsequently told Mrs. Plato to file for an extension.

IRS got none of the above, and no evidence was presented that the check was cashed. Plato filed Form 1040 MFS after audit, SFR and SNOD, and paid the amount shown on the belated (eight-year-old) 1040. IRS processed that, and stiped to the amount thereon as basis for the add-ons, like late filing, late payment and insufficient withholding.

Those are the only open issues.

Excusing late filing by agent has been a nonstarter since US v.Boyle, 469 U.S. 241 (1985). Each must bear his own burdens, as a much more exalted authority has stated. So Plato gets hit for that add-on.

Nonpayment of tax shown on return here is based on the SFR, and Section 6020(b), which sets forth the requirements for proper subscription thereof. IRS blows that one.

Judge Paris: “The Court has held that the requirements of section 6020(b) have been met where an SFR consists of Form 4549, Income Tax Examination Changes; Form 886-A, Explanation of Items; and Form 13496, IRC Section 6020(b) Certification.

“Respondent entered into evidence a Form 3623, Statement of Account, a Form 4549, and a Form 886-A.  The Form 3623 has the docket number for petitioner’s case typed at the top of the form.  Thus, the Form 3623 was not a part of the SFR prepared before petitioner filed a petition with the Court and was issued a docket number for his case.  The Forms 4549 and 886-A are both dated ‘12/15/2015’ and contain calculations based on petitioner’s separate return.  There is no Form 13496 in the record.  Respondent has failed to meet his burden of production with respect to the appropriateness of imposing the section 6651(a)(2) addition to tax.  Therefore, the determination in the notice of deficiency of the addition to tax for failure to pay the tax shown on the return is not sustained.” 2018 T. C. Memo. 7, at p. 9 (Citations omitted).

Oh, and the SFR itself never got into evidence.

IRS does no better with failure to pay estimateds. Plato and Mrs. Plato reside in The Lone Star State, home of the most fabulous sister acts going (my daughters and my granddaughters), and also home of community property. Besides, the Platos filed jointly the year before the year at issue. Remember, Plato hisself filed MFS in the year at issue, triggering the Reg. 1.6654-2(e) special rule when marrieds go from J to S or vice versa, to compute 100% of prior year or 90% of present year’s tax to see if withholding was too low.

“An IRS account transcript for the [prior year] joint return was entered into evidence.  The transcript shows that petitioner and his spouse reported adjusted gross income of $74,717 and tax per the return of $5,144….  Although there were withholding payments of $7,458 made in [year at issue], community property law in the State of petitioner’s residence requires that amount to be allocated when the married spouses chose to file separately.  No information was entered into evidence that allocated the adjusted gross income and tax per return for [prior year] between petitioner and his spouse.  Therefore, the Court cannot complete its analysis to decide petitioner’s required annual payment under section 6654(d)(1)(B) for [year at issue] because, although it can calculate 90% of petitioner’s tax for [year at issue] under clause (i), it cannot identify the number equal to 100% of the tax shown on petitioner’s [prior year] return under clause (ii). Respondent has failed to carry his burden of production; thus, the addition to tax for failure to pay estimated tax for [year at issue] is not sustained.” 2018 T. C. Memo. 7, at pp. 11-12 (Footnote and citation omitted).