Dealing with the Shutdown When You Have an Impending Calendar Call: Take Me Back to 2013

We welcome Professor Caleb Smith who has decided to do something productive at a time when productivity does not seem to be the watchword of our politicians. I wrote a post about Tax Court calendars before and after a government shutdown in the early days of our blog. What happened in 2013 might also give you some perspective on what to expect now when the shutdown ceases. Keith

It probably comes as no shock that, in the midst of the government shutdown the Tax Court did not issue any designated orders during the week of December 31 – January 4. So, because I apparently don’t handle having free-time well, I looked to orders of the past to help with this (not quite unprecedented) period of Tax Court history. In particular, I wanted to look into orders that dealt with government shutdowns.

The last government shutdown (of a lasting duration) was in 2013. (For a list of all the government shutdowns since 1976, check out this helpful PBS post.) The most natural consequence of a shutdown (and the break in communication between parties) is that additional time is needed -either on deadlines that have previously been established (see T.C. Rule 25(c)), or for the trial itself (see T.C. Rule 133). Because I happen to have a calendar call that is still technically set for February 4, 2019 I was more interested in how the Court had previously dealt with motions for continuance for the trial. As noted on the Tax Court website I should learn by January 19 whether the calendar call will actually take place, but I’d rather not wait until then to begin planning.

In my research of motions for a continuance and referenced the government shutdown, I found six orders from three Tax Court judges. Although there are some general requirements to T.C. Rule 133 that any motion for continuance should wrestle with (addressed later), the orders demonstrate more than anything that, in these sorts of discretionary matters, different judges have different preferences. Accordingly, I have broken up the orders by the issuing judge.

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Judicial Approach Number One (Former Judge Kroupa): “Take Two Aspirin and Call Me If You Still Can’t Figure It Out”

The 2013 shutdown lasted 16 days from October 1 to the October 17. The 2013 Salt Lake City trial session was set for November 4. In my experience, the month before trial is set is often the month things actually start getting done, so it is understandable that the parties may not be prepared for trial with the critical period of time effectively cut in half. The IRS appears to say as much in its motion in two separate Salt Lake City cases (Docket 24802-12 and Docket 16322-12): “we haven’t been able to resolve or narrow the issues over the last few weeks because we were locked out of our offices, so please give us more time.”

To this, Judge Kroupa says: “I encourage you to try to settle or narrow the issues for trial. So I’m holding your continuance motion in abeyance until calendar call where you can give an update. And, because I’m serious about encouraging you to settle or narrow the issues, at calendar you will also have to actually discuss the efforts you’ve made to settle or narrow the issues.”

This approach either reflects stubborn optimism or stern stewardship over churning through cases on the Tax Court docket. In either case, the result was the same: for both cases, continuance was granted at trial, and a stipulated decision entered in August of the following year.

Judicial Approach Number Two (Judge Holmes): “Take Two Aspirins and Be Prepared to Submit Status Reports”

The approach taken by Judge Holmes (Docket 10600-12 and Docket 1659-13) was not significantly different from Judge Kroupa’s. Essentially, they each ended in the parties showing up to trial and orally requesting a continuance (which was subsequently granted).

In the Villegas case, the motion for continuance wasn’t even made until the calendar call on October 21, so there really wasn’t much of another option for Judge Holmes. What is striking to me is that Tax Court didn’t cancel the calendar when the shutdown continued within a week of it (as stated earlier, that will likely not be the case this year).

In the other case (Mid City Cannabis Club), the trial was not actually set until January 27, 2014 (i.e. with more time than that “magical final month” still remaining), but the parties were both nervous because, although they may settle, they were confident they wouldn’t be ready for trial. Although Judge Holmes assures the parties that the case will be put on “status-report track” if it doesn’t settle by calendar, he denies the continuance request until then.

 

Again, denying (or holding in abeyance, like Judge Kroupa) a continuance motion until the trial date is perhaps a way to keep parties working diligently towards resolution. But, also again, the ultimate result is generally the same: the Mid City Cannabis case was continued at trial and a stipulated decision was reached in the summer of 2014 (this time July).

Judicial Approach Number Three (Judge Wherry): “Sure, I’ll Grant the Continuance: We’re in Los Angeles All the Time Anyway”

Only the retired Judge Wherry gives the immediate relief (i.e. granting of the continuance motion prior to trial) that the parties requested. Both of the parties (in both of the orders) simply say they need more time because of issues relating to the shutdown, and that appears to be enough.

 

It should be noted, however, that both of the orders (Docket 23698-12, and Docket 145-11), concern cases on the Los Angeles calendar set for December 9, 2013. Of the four cases that Judges Kroupa and Holmes granted continuances for, only one ended up having to go to trial. And that trial took place in… Los Angeles.

Although it goes unstated in the order, the Tax Court simply comes to L.A. more frequently than it does to places like Salt Lake City. Accordingly, by granting a continuance the Court could simply allow the parties to regroup and come back to the table five months later during the May calendar call. Perhaps things would settle by then (as they did in the Moore case, during that “magical” pre-trial month). Or perhaps they would simply have the trial at that later date (as they did in the Coastal Heart Medical Group case). Either way, the efficiency concerns (that the parties will be at loggerheads, and the case sit on the docket for almost another year) don’t present themselves as starkly in the bigger cities as they do in the smaller.

Learning From the Past and Preparing for the Future: Crafting Your Rule 133 Motion

So what can be gleaned from these six orders (four of which come from judges that no longer are on the Tax Court)? In spite of my preliminary take-away (“different tax court judges deal with these things in their own way”) there are some commonalities, and, dare I say, some lessons to be learned from the orders.

Lesson One: Make the judge aware of your need for a continuance in advance of the trial date, rather than just assuming that they will “get it” that you need one because of the shutdown. The fact that (most of) the continuances weren’t automatically granted in the above cases is evidence that the Court expects you to work things out as much as possible even in limited timeframes. Which leads to the second lesson:

Lesson Two: Give reasons why granting the continuance won’t significantly hinder (or may actually help) the efficiency of the court. If both parties were in the process of working out a settlement (that was thwarted primarily because of a breakdown in communications caused by the shutdown) that seems a pretty good reason to give additional time to work things out and may avoid a trial that was never needed. Similarly, it doesn’t do anyone any favors (and makes everyone look bad) to show up for trial when the issues still aren’t well defined. But you have to be prepared to explain why it is the shutdown “caused” these issues to remain ill-defined or the settlement to remain out of reach. Perhaps there were meetings or document exchanges that had to be cancelled and, if only the shutdown wouldn’t have occurred, the case would be much clearer for all involved. Specificity (rather than just saying “we could use more time to define the issues… even though the petition was filed almost a year ago”) is key.

Lesson Three: Provide the court with a plan (specifically, deadlines) to show you will continue to diligently work on the case. The trial date is, in some ways, just a helpful deadline for the Court to keep parties moving towards settlement. If Tax Court isn’t coming to your town again in the near future, asking for continuance may appear to be an indefinite hold on having any accountability. If Tax Court is coming to town again in the not-so-distant future, you may suggest that it be calendared at that date. Of course, since not every location has that luxury, proposing to be put on the “status report track” may be the best you can do. Four of the six cases discussed above settled without needing to go to trial after the continuance was granted. The two that didn’t settle were able to get calendared within roughly half-a-year. If at all possible, you want to be able to demonstrate a similar likely outcome with your case.

Lesson Four: Detail why you are not dilatory in requesting the continuance at this late date. This lesson is less from the orders and more from the rule itself: namely, that a request for a continuance hearing within 30 days of the calendar/trial that it relates to will ordinarily “be deemed dilatory and will be denied unless the ground therefor arose during that period or there was good reason for not making the motion sooner.” The general rule is that the closer to the trial date you make the continuance motion the less likely it is to succeed unless (1) the reason for the motion only just arose, or (2) there is some other good reason for waiting. Of course, if your calendar date is within 30 days of the shutdown you can argue the reason for the motion “arose during that period”, but you will still want to provide other good reasons why it couldn’t be made sooner. One reason may well be logistics: every continuance motion specifically (and every motion generally, see T.C. Rule 50) is supposed to include whether it is objected to or not by the opposing party. At the moment, it is rather hard to get a word from IRS Counsel as to whether they reject, because they aren’t really around.

I could easily go broke betting on when this shutdown will end, but one thing I am confident of is that there is a lot of work piling up for the Tax Court and IRS in the meantime. On return from the shutdown you don’t want to greet the Tax Court judge with a motion that effectively says “let’s keep this case in your (massive) to-do pile because, man, that shutdown was rough.” Rather, try to empathize: “I know you have a lot on your plate, and we’re working to get this case resolved without a trial (or with as orderly a trial as possible). Help us help you by giving us time to do that.” By (1) letting the court know as far in advance as possible of the need for continuance, (2) providing specific reasons why the continuance is in their interest, and (3) drawing up a plan for how to work towards a resolution of the case you demonstrate to the Court that you are doing your part to keep things orderly and efficient.

 

Making the Wrong Argument: How to Avoid Raising Issues That Don’t Actually Matter. Designated Orders December 3 – December 7, 2018

This week’s designated order post is brought to us by Professor Caleb Smith at the University of Minnesota. Keith

Raising the Wrong Issue in Summary Judgment: Fowler v. C.I.R., Dkt. No. 28935-14L (here)

We have seen no shortage of summary judgment motions in the designated orders section. Some fail because of defects the IRS brought upon itself (for example, here), some fail because the law is particularly complicated and the record needs to be further developed (for example, here). Many succeed. This is particularly when the taxpayer is unrepresented or when the taxpayer does not appear to have fully participated in a collection due process hearing.

Fowler is a slight variation on this theme: it involves unrepresented taxpayers that clearly could have afforded counsel, but decided to go their own way. And in so doing they provide a lesson on how not to respond to a summary judgment motion while simultaneously illustrating the adage “penny wise, pound foolish.”

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It isn’t clear exactly where the Fowlers income comes from, but it is safe to bet that they live comfortably. Apart from the fact that they own a vacation home in Los Angeles, one may surmise their wealth from the size of their tax liabilities. For the tax years at issue is in this case there are self-reported liabilities of $274,005 (for 2008), $214,846 (2009), $273,220 (2010), $205,839 (2011), and $289,787 (2012). The Fowlers apparently have enough cash on-hand to make fairly large lump-sum payments, when they feel so inclined (as they did by paying $120,000 on September 24, 2010 and $70,000 on March 22, 2012). Lastly, in 2012, the IRS calculated that the Fowlers were making $83,000… per month.

All of this is to say that the Fowlers (1) can afford to pay a lawyer, and (2) can afford to pay their taxes. Or at least could have afforded to pay their taxes if they hadn’t let them balloon with penalties and interest.

Of course, things change and by the time of the CDP hearing in 2014 the Fowlers had calculated that they could only pay $11,000 a month through an installment agreement. The IRS asked for a bit more information to confirm this payment amount (as is standard, when the liability is that large will not be paid within 72 months). And the Fowlers apparently never responded. Which is typically a recipe for summary judgment should resulting unfavorable CDP determination ever find its way to court review.

And so it was in this case, but with an important twist: the Fowlers did respond to the summary judgment motion, but made the wrong arguments. Mainly, they tried to allege new facts purporting to show abuse of discretion rather than denying (or otherwise addressing) the facts put forth by the IRS in the summary judgment motion.

The crux of the IRS’s motion for summary judgment is “Your collection alternative (installment agreement) could only be considered if you bumped up the monthly amount or provided more information. You did neither. You do not dispute that you did neither. Ergo, summary judgment is appropriate.” The crux of the Fowlers’ argument is “you should have given us more time to submit those documents: the roughly three months you provided was not enough.” The crux of Judge Ashford’s decision is “it sounds like you both agree on the material facts, and those facts lead to a decision that may be rendered as a matter of law.”

The important aspect of Judge Ashford’s decision (and the flaw in the Fowlers argument) is that for summary judgment all that matters are the material facts. Here, the material facts are primarily whether the Fowlers ever provided information after being asked for it. Because the “factual disputes” the Fowlers put forth would not “affect the outcome of the suit under the governing law” (see Anderson v. Liberty Lobby, Inc,, 477 U.S. 242 (1986) (here) they are essentially irrelevant for the purposes of the summary judgment motion.

Quoting Casanova Co. v. C.I.R., 87 T.C. 214 (1986) (here), Judge Ashford notes that the determination of what facts “are material, of course, depends upon the context in which they are raised and the legal issues which exist between the parties.” One may be inclined to think that the amount of time the IRS allows you to provide documents could be a material fact with regards to an abuse of discretion determination. But not in this case, where the IRS has apparently allowed several months and generous extensions already. In the words of Judge Ashford, and quoting numerous cases on point, “This Court has consistently held that Appeals is not required to negotiate indefinitely or wait any specific amount of time before issuing a notice of determination.” I won’t run through the list of cases Judge Ashford cites to prove this point, but they take up essentially a full paragraph running from the bottom of page 14 through the top of page 15 in the order.

While the Fowlers may have benefitted from counsel at an early stage in this controversy, the order also provides a second interesting lesson on the arguments one can make in a CDP case. This time, however, the lesson applies against the IRS. Early in the order (and brushed aside with a footnote), the IRS appears to allege that the Fowlers filed their 2008 taxes late -which would carry huge penalty implications given the $273,005 liability at issue for that year. Indeed, Judge Ashford states that “On December 18, 2009, petitioners filed (on extension) their joint Federal income tax return for 2008[.]” If that is the case, then it is nearly impossible that the Fowlers return was not late, regardless of extension. Unless they were abroad or in a Presidentially declared disaster zone and received an extension, a filing date of December 18 would almost necessarily be late, and reflect the date the return was received by the IRS. See IRC 6072 and IRC 6081.

The late filing would, in turn, make for an assessable penalty of 5% the tax required to be shown on the return, per month delinquent. See IRC 6651(a)(1). Again, a large chunk of change in this instance. I tell my students that with big dollar taxpayers being a day late leaves you far more than a dollar short (Ok, I don’t phrase it exactly that way). See Laidlaw v. C.I.R., T.C. Memo. 2017-167 for a good example of how costly late filing errors can be. But either the IRS is mistaken about the return actually being late (as the Fowlers argue) or someone/some computer gifted the taxpayers a large amount of penalty relief by failing to assess what is generally a pretty automatic penalty. In any event, because it is of no moment to the motion for summary judgment, it is swept aside by Judge Ashford.

Raising the Wrong Issue On Your Petition: Owens v. C.I.R., Dkt. No. 12420-18 (here)

Owens involves an aggrieved taxpayer that filed a petition for redetermination of his deficiency, but on grounds that appear to put him in the company of tax protestors. The disagreement with the IRS (at least as presented on the petition) appears to focus on a supposed failure to send the notice of deficiency by certified mail, and general gripes against the IRS for being unresponsive. These arguments do not, however, appear to allege any actual errors with the IRS determination itself. The result is a rather concise dismissal of the petitioners tax court case for failure to state a claim upon which relief can be granted.

So a (like) tax protestor loses at an early stage for failure to state a claim. Why does that matter? It matters for reasons the intrepid Carl Smith has blogged about before and alerted to me again in writing this post.

The first issue is what standard the Court should apply in determining the sufficiency of the pleading -in a sense, how much do you have to initially put forth for your petition to state a claim on which relief could be granted? Historically, district court’s applied the fairly low-bar “notice pleading” standard put forth by the Supreme Court in Conley v. Gibson. Since my office is directly next to a professor of federal civil procedure, I regularly hear the phrase “Twiqbal” in discussions about the sufficiency of pleadings in federal district court. “Twiqbal” is a mash-up of the two Supreme Court cases that have replaced Conley (Twombley and Iqbal) and incorporated a new, more demanding standard for pleadings to survive. Namely, the Court looks to “whether a complaint states a plausible claim for relief[.]” [Emphasis added.]

The question (addressed by Carl in depth here) is what standard the Tax Court uses to determine the sufficiency of the pleadings. Is it still Conley (which is the case cited to by Judge Guy in this order)? One may reasonably believe that to be the case: I found only one Tax Court case that even mentions Iqbal, and even then it is only quoting the language of petitioner’s (failed) argument. See Cross v. C.I.R., T.C. Memo. 2012-344. Nonetheless, clarification on the applicable standard appears to be lacking.

But there is also a second issue lurking in the dismissal, this time concerning the IRC 6662 penalty asserted in the notice of deficiency. Does the IRS “win” on the penalty with the dismissal of the case? What about their burden of production under IRC 7491(c)? What about Graev III and IRC 6751(b)?

The Tax Court rules instruct petitioners to assign error even to issues “in respect of which the burden of proof is on the Commissioner.” T.C. Rule 34(b)(4). Accordingly, the petitioner should put the penalty at issue in the petition, even if they don’t need to allege any facts relating to it (See T.C. Rule 34(b)(5)). Further, two tax court cases cited by Judge Guy (Funk v. C.I.R. and Swain v. C.I.R.) have already held that the burden of production for penalties does not apply to the IRS when the petition (and/or amended petition) does not “raise any justiciable claims.” In short, if your petition walks and talks like a tax protestor (while failing to specifically assign error to the penalty), the IRS has no burden to produce evidence that the penalty applies before your case gets dismissed.

All of this is, in a sense, a fairly elementary but important lesson on what how the initial stages of litigation work. It may be best to conceptualize the Notice of Deficiency as the complaint: the taxpayer has to answer to avoid default, and in the answer they must take care to respond to everything that is actually at issue or risk conceding it. The petition is not the time to make legal arguments (which is where I see my students most often going astray), but simply to assign error (which is all that is needed for penalties subject to IRC 7491(c)) and allege facts that, if true, would support your claim. Trying to do too much (raising issues that aren’t really in the NOD, making legal arguments rather than alleging facts) will generally do you more harm than if you just succinctly said “the Commissioner erred on x, y and z because of facts a, b and c.”

A Designated Order… Or Not? Whistleblower 11099-13W v. C.I.R., Dkt. No. 11099-13W (here)

There was only one other designated order this week… or was there? What began as a somewhat tantalizing look at the interplay of the APA to whistleblower cases has turned to dust:  the Tax Court vacated the order for reasons not particularly illuminated or illuminating (found here).

 

 

 

Don’t Forget Guralnik and Parkinson during Tax Court’s Indefinite Closure

The government shutdown and last Friday’s closure of the Tax Court, as discussed here, provides an opportunity for taxpayers who would otherwise have missed the jurisdictional deadline for filing a Tax Court petition. Since the last government shutdown of any length the Tax Court’s precedent on jurisdiction has changed. A reminder of the Tax Court precedent regarding the impact of the closure of the Tax Court clerk’s office on the timeliness of filing a petition (and other documents?) is worth a visit. Carl Smith assisted me in the preparation of this post.

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Long time readers of this blog know that we paid a fair amount of attention to the Guralnik case a few years ago perhaps because the tax clinic at Harvard filed an amicus brief in that case. See our posts here, here and here. While the tax clinic argued that the Tax Court had the power to open its doors based on equitable tolling, the court rejected the clinic’s argument in favor of a non-equitable remedy that has both broader implications as discussed below and narrower ones for other petitioners.

Mr. Guralnik’s attorney sent a petition to the Tax Court in a Collection Due Process (CDP) case via Fed Ex on the 28th day after the issuance of the CDP Notice. Unfortunately, the Fed Ex delivery service selected (the best one offered) was not on the IRS list of approved delivery services because the IRS had not updated its list in the 11 years prior to Friday, February 13, 2015 when the petition was given to Fed Ex. Because the chosen delivery service was not on the IRS list, the IRS argued and the Tax Court agreed that the mailbox rule of IRC 7502 did not apply.

Petitioner needed the mailbox rule to apply, or an expanded reading of the “weekend and holiday” rule of IRC 7503, because the petition did not arrive in the Tax Court until Wednesday, February 18. Before you conclude that Fed Ex fell down on the job of delivering the petition, it is important to understand what happened in the intervening days during which the Tax Court was closed – Saturday, Sunday, Monday (President’s Day) and Tuesday (Snow closure). The petition arrived at the Court on the first day it opened after petitioner’s attorney delivered the petition to Fed Ex.

Prior law

Among the reasons that the IRS argued that the Tax Court lacked jurisdiction in Guralnik was that there were prior orders of the Tax Court in similar cases of the Clerk’s office being closed, and one of those cases involved a government shutdown.  Government shutdowns formed the basis for dismissals in the pre-Guralnik era. One of the cases forming the body of pre-Guralnik jurisdictional law in the Tax Court, McCoy v. Commissioner, Dk. No. 25941-13S, involved the dismissal of a case in which the taxpayer tried and failed to file the petition prior to the reopening of the Tax Court following the government shutdown.  In McCoy, hand delivery was made at the Tax Court the first date the Clerk’s Office was open after a 2013 government shutdown. The order in McCoy reads differently than the order that the Court posted for this shutdown. The difference might be attributable to the Guralnik case.

Current law

In a fully reviewed, precedential opinion, the Tax Court concluded that because it had no rule regarding days when its clerk’s office was closed it could borrow from the Federal Rules of Civil Procedure and treat filings received on the next day after closure as timely. The IRS argued vigorously against this result; however, as we posted here, the IRS appears to have accepted the result when the issue of the closure of the clerk’s office came up in a subsequent case, Parkinson v. Commissioner, Dk. No. 296-15. In Parkinson the Tax Court asked the parties to address the issue of the Court’s jurisdiction of a case in which the petition was filed after the last date to file unless one considered the Court’s extra holiday closure on January 2, 2015. After both parties filed responses indicating that the Guralnik opinion would apply to the court closure situation, the Tax Court seems to have accepted their arguments without further elaboration in its order.

Given the precedent set by Guralnik and the non-precedential acceptance of that precedent for the situation of the Court closing down to allow its employees off on the Friday after New Year’s Day, it appears almost certain that starting on December 30, 2018, the time for filing a petition in the Tax Court is extended until the government shutdown ends and the Tax Court clerk’s office reopens. Perhaps no taxpayers will benefit from this additional time within which to file their Tax Court petitions but knowing the rule could assist someone who might otherwise have missed the deadline.

Following on the logic of filing documents late when the clerk’s office is closed, it would also seem that brief and other responses due to the Tax Court during the period of the clerk’s office closure can also be filed when the court reopens. For veteran procrastinators this may seem like an opportunity to sit back and wait; however, government shutdowns can end as quickly as they begin. A late night agreement among the parties could restart the government unexpectedly. While we do not recommend delaying a filing because of the shutdown, perhaps an opportunity exists for those who prefer not to file before the absolute last minute. Another reason for not waiting is discussed below; however, if you have a client appear in a situation that would otherwise be too late to file the petition, perhaps Guralnik will provide some magic for your client.

Tax Court action prior to shutdown

In addition to posting the notice on its website that we discussed in a prior post, the court issued nearly 300 orders on Thursday and Friday before it shutdown to the parties involved in the cases set for trial in the first two weeks of trial session in January. The orders generally contain the following language:

The parties are notified that the cases set for trial and/or hearing during the trial session scheduled to begin in New York, New York, on January 14, 2019, shall proceed as scheduled. To avoid potential complications caused by the partial government shutdown, it is

ORDERED that a paper copy of any document submitted to the Court for filing, either electronically or in paper, between the date of this Order and the date of the above-referenced trial session, shall be made available at the trial session by the party who submitted the document.

For a case containing the sample language see the order in Gross v. Commissioner (Docket No. 2010-18S). The fact that the Tax Court had to issue nearly 300 orders is just another example of the colossal waste of resources when the government shuts down. This one is probably small in comparison to others but provides a very tangible example.

Caveat

One caveat should be noted before relying on a government closure to make a petition filing’s timely: The Tax Court’s Guralnik ruling was never appealed, and no court of appeals has yet considered whether the Tax Court may import rules from the Federal Rules of Civil Procedure to extend Tax Court filing deadlines that have been in the past held jurisdictional. But, there are currently before the Ninth Circuit two companion cases of petitions sent in around the same time as Guralnik, also by FedEx First Overnight, that arrived a day late. In these cases, Organic Cannabis Foundation LLC v. Commissioner, Ninth Cir. Docket No. 17-72874, and Northern California Small Business Assistants, Inc. v. Commissioner, Ninth Circuit Docket No. 17-72877, it is not clear why the petitions were filed late, but it appears that the Federal Express driver could not access the open Tax Court Clerk’s Office on the last day – either because of construction work, police activity, or some other reason – so the driver returned the following day (one day too late if section 7502 can’t be used). In unpublished orders issued on July 25, 2017 (here and here), the Tax Court declined to extend Guranik to cover situations where the Clerk’s Office was in fact open.

In the Ninth Circuit, the taxpayers not only seek to extend Guralnik, but also argue (as the tax clinic at Harvard did in Guralnik) that the deficiency petition filing deadline is not jurisdictional and is subject to equitable tolling. The DOJ relies on the holding in Guralnik, but argues that Guralnik cannot be stretched to cover the situation where the Clerk’s office is actually open. Since the parties cannot confer jurisdiction in a case merely by not making certain arguments, it would not be impossible for the Ninth Circuit to eventually rule both in these cases that the filing deadline is jurisdictional and that the Tax Court cannot import into its own rules any rule from the Federal Rules of Civil Procedure that extends the filing deadline when the Clerk’s Office is formally closed. That is, nothing stops the Ninth Circuit from rejecting the latter holding in Guralnik. Thus, until there are some court of appeals rulings on this fact pattern, it may be wise not to try to rely on the closure of the government as a reason for not mailing a Tax Court petition on time or attempting hand delivery to the court on the first date it reopens. The cases before the Ninth Circuit are fully briefed, but a date for oral argument therein has not yet been set. Among the briefs there are amicus briefs from the Harvard tax clinic arguing that the filing deadline is not jurisdictional and is subject to equitable tolling.

 

Tax Court Operations During Federal Government Shutdown

The message below is posted on the Tax Court’s web site. The Tax Court was able to operate on a normal schedule after other parts of the government impacted by the government shutdown because it has a reserve of funds from the fees it collects. Even though the court itself shut down yesterday, it will continue to hold trial calendars for the first two weeks of scheduled calendars in January.   The IRS attorneys who represent the government in the cases on those calendars will undoubtedly be deemed essential for the period of the calendar and for some time before the calendar.   Still, it may be a little tricky for those with cases on these calendars.

The United States Tax Court is shut down starting Friday, December 28, 2018, at 11:59 p.m. and will remain closed until further notice.

The trial sessions scheduled for the weeks of January 7 and 14, 2019, will proceed as scheduled.

  January 7, 2019

  • Birmingham, Alabama – Judge Joseph Robert Goeke
  • Los Angeles, California -Judge Albert G. Lauber
  • San Antonio, Texas – Judge Mary Ann Cohen

January 14, 2019

  • Los Angeles, California – Chief Special Trial Judge Lewis R. Carluzzo
  • New York, New York – Special Trial Judge Daniel A. Guy, Jr.
  • Phoenix, Arizona – Judge Ronald L. Buch
eFiling and eAccess will be available. Taxpayers may comply with statutory deadlines for filing petitions or notices of appeal by timely mailing a petition or notice of appeal to the Court. Timeliness of mailing of the petition or notice of appeal is determined by the United States Postal Service’s postmark or the delivery certificate of a designated private delivery service.

Please monitor this website for information regarding the Court’s operating status.

 

Designated Orders: A Mixed Bag – Easements and Common Issues (11/26/18 to 11/30/18)

William Schmidt of Legal Services of Kansas brings us this weeks designated orders. The orders this week contain a lot of meat. Two of the orders deal with expert witnesses and problems with those witnesses. In one case the IRS seeks to exclude a petitioner’s expert because the expert is a promoter of tax schemes rather than a true expert and in another case petitioner seeks to exclude respondent’s expert because the expert destroyed the material he thought was not relevant to his expert opinion. Many other matters, particularly regarding conservation easements, deserve attention in these orders as well. Keith

The week of November 26 to 30, 2018 had seven designated orders. The week was a mixed bag. Some orders focused on less common issues like charitable contributions of easements, while other orders looked at routine deficiency or Collection Due Process issues.

Easement Issues, Part One

Docket No. 29176-14, George A. Valanos & Frederica A. Valanos v. C.I.R., available here.

To begin with, this designated order is 30 pages. Most designated orders do not reach a page count in the double digits so it is a rarity to find one this long. As a result, there are multiple items to discuss that I will be summarizing.

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The petitioners asked the Court to determine whether the IRS improperly denied their non-cash charitable contribution deduction for a conservation easement in tax years 2005 to 2007. The IRS filed a motion for partial summary judgment that the Court denies. The sole issue stated for decision is whether the petitioners’ conservation easement deed of gift satisfied the perpetuity requirements of IRC section 170(h)(5) and 26 C.F.R. sections 1.170A-14(g)(2) and (6). Because of the genuine dispute as to material facts, Rule 121(b), and a lack of clarity and specificity in the parties’ contentions of law, the Court denied the IRS motion for partial summary judgment.

For background, the order discusses the subject property, the mortgages affecting the subject property and the conservation easement, the subordination agreements, the conservation easement, the petitioners’ tax returns and charitable deduction disallowance, and the Tax Court proceedings.

Of note is that the recalculations of petitioners’ tax liabilities resulted in deficiencies of $192,486 for 2005, $153,742 for 2006, and $104,662 for 2007. The IRS also determined that the petitioners were liable for gross valuation misstatement penalties under section 6662(h) or, in the alternative, section 6662(a). On September 3, 2014, the IRS issued a notice of deficiency, and the petitioners timely mailed their petition to Tax Court.

The Commissioner moved for partial summary judgment on the grounds that the Greater Atlantic Bank subordination was defective and therefore the conservation easement did not meet the requirements for the charitable contribution deduction. The IRS appeared to initially concede any issue with the Wells Fargo deed of trust.

After the parties fully responded to the motion for partial summary judgment, the Court issued its opinion in Palmolive Bldg. Investors, LLC v. Commissioner, 149 T.C. ___ (Oct. 10, 2017), (discussed below). The Court issued an order that invited the parties to file supplemental memoranda addressing the implications for this case.

In its supplemental filings, the IRS arguments are that similar to the Palmolive subordinations, the Greater Atlantic Bank and Wells Fargo subordinations failed to adequately meet the requirements of subordination of the lenders’ interests in insurance proceedings. The IRS reiterated the Greater Atlantic Bank argument but added the argument that the Wells Fargo subordination did not meet requirements because it did not use the term “subordinate.”

The petitioners responded with arguments that the conservation easement and subordination agreements are valid, all section 170 requirements are satisfied, and they are entitled to all the deductions taken on their original returns.

In the discussion, the order begins with general principles and reviews the principles of summary judgment, conservation easements under section 170(h), the perpetuity requirement of 26 C.F.R. section 1.170A-14(g) (broken down into mortgage subordination and extinguishment proceedings), the relation of federal taxation and state law property rights, real property ownership and mortgage theory (looking at sections on real property ownership, legal interests and equitable interests, and mortgage theory), and District of Columbia’s real property law (with this section looking at mortgages in the District of Columbia, deeds in the District of Columbia, and conveyances of personal property in the District of Columbia).

Next in the discussion is the parties’ contentions, broken down between the Greater Atlantic Bank deeds of trust and their subordination agreement, and the Wells Fargo deed of trust and its subordination agreement.

Third in the discussion is the analysis portion. The first part of the analysis begins by stating that factual disputes are not resolved under Rule 121.

Next is that Section 1.170A-14(g)(2) requires subordination of mortgages. This second part includes sections on the need for attention to local law, Greater Atlantic Bank’s subordination agreement and the Wells Fargo subordination. The Greater Atlantic Bank subordination agreement section looks at the sufficiency of one general subordination agreement for two deeds of trust, the undated subordination agreement, and compliance with District of Columbia law’s recording and other requirements (broken down further into application of state-equivalent real estate law and recording requirements – validity as to third parties). The Wells Fargo subordination looks at the failure to use the verb “subordinate” and subordination or conveyance of an executory interest.

The third part of the analysis looks at the Section 1.170A-14(g)(b) requirement that the donee receive a proportionate share of extinguishment proceeds. This is broken down further to look at Greater Atlantic Bank’s subordination as to proceeds and Wells Fargo’s subordination as to proceeds.

The fourth part of the analysis turns to mortgage theory in light of conservation easements.

The order then turns to unanswered questions. The Court provides a list of nineteen unanswered questions, stating that thorough answers to these questions would allow the Court to analyze the parties’ respective arguments and reach a conclusion of the issues discussed within the order.

In the conclusion, the Court states disputes of fact exist and that the statements from both parties need further explanation and citations to legal authority.

Judge Gustafson orders that the IRS motion for partial summary judgment is denied. The facts assumed in the order are not findings for trial, and each party must be prepared to prove the relevant facts. No later than December 21, 2018, the parties must file a joint status report (or separate reports if that is not expedient) with their recommendations as to further proceedings in this case.

Takeaway: If you want to experience the complexity of the discussion, issues and questions in this case, I recommend you click the link above. This order dives deeply into an examination of the interaction between various areas of law, such as property (subordination agreements, mortgages, and conservation easements) and tax (charitable contribution deductions) while balancing the intersection of federal law and District of Columbia law.

Easement Issues, Part Two: The Palmolive Orders

Docket No. 23444-14, Palmolive Building Investors, LLC, DK Palmolive Building Investors Participants, LLC, Tax Matters Partner v. C.I.R.

The Tax Court issued an opinion in this case, 149 T.C. No. 18 (Oct. 10, 2017), holding that Palmolive is not entitled to a charitable contribution deduction for the contribution of a façade easement because of their failure to comply with certain requirements of IRC section 170. It is still at issue regarding Palmolive’s liability for IRS penalties asserted, which is set for trial commencing January 22, 2019, in Chicago, Illinois.

  • Order 1 available here. The IRS filed a motion for leave to file a second amendment to their answer, where they would supplement the answer with an allegation that Palmolive’s appraiser was a “promoter” and therefore not a qualified appraiser. The Court grants the motion for leave to amend, but the IRS needs to transmit a detailed written statement of the facts on which it will rely at trial to support its contention he was a “promoter.” Palmolive’s assertions in their opposition are deemed to be requests for admission for the IRS to respond to under Rule 90.
  • Order 2 available here. Palmolive filed a motion for summary judgment and the IRS filed their own motion for partial summary judgment in response. In a conference call with the parties, Judge Gustafson explained his expectations as to how he is likely to rule on the issues raised in the motions. He suggested that Palmolive “might wish to forego further filings on the motions and instead use its time to prepare for trial.” Palmolive’s counsel stated there would be no further filing on the issues 2 to 4, but would file a reply as to issue 1. The judge stated he expects to grant the IRS motion on issue 4, regarding the IRS written supervisory approval of the initial determination of penalties in compliance with IRC section 6751(b), but that the order or opinion might not be issued until soon before trial. The parties are to prepare for trial on the assumption that issue 4 will not be a subject of trial. Note: there was a subsequent designated order on issue 1 that will potentially be addressed in another blog post that is available here. Spoiler alert: Palmolive loses on issue 1.

Takeaway: This is a case with multiple filings and has complexity. One takeaway from these orders is that when the judge tells you not to do something it is in your best interest to comply.

Motion to Strike

Docket No. 14214-18, Pierre L. Broquedis v. C.I.R. (Order here).

It is not often that we see a Motion to Strike in a Tax Court case. Here, Petitioner states paragraphs and exhibits in Respondent’s answer are false or not concise statements of the facts upon which Respondent relies.

The Court cites Tax Court Rule 52, where the Court may order stricken from any pleading any redundant, immaterial, impertinent, frivolous, or scandalous matter. The Court states that motions to strike are not favored by federal courts. Matters will not be stricken from a pleading unless it is clear that it can have no possible bearing on the subject matter of the litigation. Additionally, a motion to strike will not be granted unless there is a showing of prejudice to the moving party.

The Court concludes the allegations and exhibits bear a relationship to the issues in the case. Also, petitioner failed to show that he would be materially prejudiced by a denial of his motion to strike. The Court then ordered to deny the motion to strike.

Takeaway: Since the Court states that motions to strike are not favored by federal courts, they should be avoided. While Rule 52 spells out the Court’s ability to order material stricken, this case illustrates that there are rare circumstances when the Court will grant such an order.

The Numbers Don’t Match

Docket No. 7737-18, Kelle C. Hickam & Nancy Hickam v. C.I.R. (Order here). Petitioners filed their petition with 6 numbered statements in their paragraph 5. Respondent filed an answer, admitting to certain paragraphs in the petition. Petitioners, thinking that the IRS partially conceded the case, submitted a motion for partial summary judgment. The Court states: “Petitioners, however, appear to believe that respondent’s numbered paragraphs in his answer refer to their numbered responses in the petition’s paragraph 5. They do not. Respondent’s paragraphs in his answer refer to the numbered paragraphs on the petition.” Since there are genuine disputes of material fact, the Court denied the motion.

Takeaway: While I understand that court documents are not always easy to understand, it would have been wise for these unrepresented petitioners to talk about the pleadings with someone who is familiar with court procedure. It should be a simple step to match the paragraphs between the Petitioner’s petition and the Respondent’s answer. The IRS is not going to concede material issues when they file an Answer. You’re not going to get that lucky.

Miscellaneous Short Items

  • Supervisor Conspiracy – Docket No. 15255-16SL, Robert L. Robinson v. C.I.R. (Order and Decision here). The petitioner mentions that his supervisor obstructed/impeded his payments and that there was a conspiracy. Otherwise, this looks to be a routine Collection Due Process case, granting the IRS motion for summary judgment because they followed routine procedures.
  • Materials Destroyed – Docket No. 20942-16, Donald L. Bren v. C.I.R. (Order here). Petitioner filed a motion in limine to exclude from evidence the report of respondent’s expert, Robert Shea Purdue, because he deliberately discarded documents and deleted electronic records investigated but disregarded in reaching the conclusions set forth in his report. The Court granted that motion.

 

 

IRS Updates “EZ Answer” Test Procedures for S Cases

At the recent Low-Income Taxpayer Clinic grantee conference, Keith and I were fortunate to hear from a distinguished panel of Tax Court judges discussing practice before the Court. During the panel, Special Trial Judge Leyden was asked about the most surprising thing she has learned since her 2016 transition from practitioner to judge. She commented that she has been dismayed by the sheer volume of cases that are dismissed for the petitioner’s failure to prosecute, and she encouraged participants in the Tax Court’s clinic program to suggest solutions that the Court might consider. The IRS “EZ Answer Test” may be one step towards ameliorating the problem.  

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In October of 2017, the IRS began a pilot program called EZ Answer Test. (AP-08-1017-0018, 10/20/17.) This test program allows IRS Counsel in certain offices to answer an S case without waiting to receive the Administrative File, if Counsel believes it does not need the administrative file to answer the petition. (The pilot does not apply to CDP cases.) The filing of an EZ Answer automatically transfers jurisdiction of the case to Appeals. Recently the IRS updated its EZ Answer Test procedures, tightening one of the timeframes and specifying additional procedures. (AP-08-1218-0016, 12/12/18).  

We have discussed issues relating to answers in Tax Court on PT before. In August Keith discussed updated guidance on handling premature petitions, which Bob Kamman had previously highlighted. 

The Court and IRS Chief Counsel would prefer to resolve cases on their merits. Unfortunately, the problem of nonresponsive petitioners stubbornly persists despite the combined efforts of the Court, IRS, and LITCs. As Judge Leyden noted, it is all too common for self-represented petitioners to drop out of their Tax Court cases and become nonresponsive at some point before trial. Sometimes previously-nonresponsive petitioners appear at Calendar Call if the case is not dismissed before that date, but other times petitioners seem to take no action at all after filing their petition.  

One notion that has gained some stakeholder support is that petitioners stand a better chance of remaining engaged if they are contacted early and often after filing their petition. Petitioners who do not hear anything about their case for several months at a time may give up or they may run into problems that make it difficult to remain engaged. For example, in many jurisdictions tenants can be evicted with very little notice. In Pennsylvania the law allows residential leases to provide for zero notice before an eviction action is filed in court. For someone facing a crisis like eviction with very little time to respond, the problem of keeping warm and safe may understandably occupy all of their time and energy. If the tenant has to move, documents may be lost or the taxpayer may not remember to update their address with the Court when they are able to find new housing. In other cases, taxpayers say that they  temporarily dropped off the radar due to health problems which consumed all of their attention. There are many other reasons.  

One of the main reasons for pretrial delays in S cases (between the filing of a petition and the IRS answer, and again from the filing of the answer to when Appeals contacts the taxpayer, and again from the time Appeals sends the case back to Counsel and when Counsel contacts the taxpayer) is that the IRS administrative file on the case must be physically moved from one office to another. Counsel needs the administrative file to Answer the petition. Then, most pro se cases are transferred to the Office of Appeals to attempt settlement. If the case does not settle in Appeals, the file is sent back to Counsel to prepare for trial. I do not know why the process of transferring the administrative file takes as long as it does, but I believe IRS Counsel when they say that they simply cannot get the file quickly. The IRM even has procedures for creating dummy files when the administrative file cannot reach Counsel in time to answer the case. (See IRM 8.4.1.8.1 (08-09-2011), Dummy File Procedures.)  

I doubt that increased taxpayer engagement was the only motivation behind the IRS’s “EZ Answer Test” program, but I hope the IRS will study taxpayer engagement in conjunction with the program to see if there is any improvement. Whatever the motivation, it is laudable that the IRS is attempting to reduce the time from when a case is filed to when an Appeals employee contacts the taxpayer and substantively engages them in an attempt to settle the case. Faster pretrial timeframes generally help to keep pro se taxpayers engaged, promoting several of the rights in the Taxpayer Bill of Rights including the Right to Quality Service, the Right to Challenge the IRS’s Position and Be Heard, and the Right to Appeal an IRS Decision in an Independent Forum, not to mention (perhaps most important) the Right to Pay No More than the Correct Amount of Tax.  

Frustration with the Premium Tax Credit, Designated Orders 11/19/18 – 11/23/18

We welcome Professor Samantha Galvin from the Sturm Law School at the University of Denver who brings us this weeks designated orders. She focuses on Premium Tax Credit disputes and the possibility of success in some cases where an insurance company or health insurance marketplace erred. Professor Galvin’s success in the second clinic case she describes makes me hopeful that the final thoughts in this post on APTC and third-party fraud were not entirely off the mark. Christine

Only four orders were designated during the week of Thanksgiving. I discuss one in detail and summarize the others below.

Frustration with the Premium Tax Credit

Ovid Sachi & Helen Sachi v. CIR, Docket No. 12032-17 (here)

This first order and decision was issued in a case involving the premium tax credit (“PTC”) under section 36B. Christine Speidel and I authored the Affordable Care Act (“ACA”) chapter in the most recent edition of Effectively Representing Your Client before IRS and it was my introduction to all things ACA.

A search of Tax Court opinions reveals that only ten cases, so far, mention the PTC. I anticipate that we will see more PTC related cases as time goes on, but it is still very much a developing area and this decision seems consistent with the others. Two early cases were discussed on PT here.

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For those of you who may not know, the PTC is a credit available to taxpayers to whose incomes fall between 100% – 400% of the federal poverty line. It is intended to offset the cost of insurance premiums and make health insurance more affordable for middle and low-income taxpayers. The credit can be paid, either in part or in full, to the insurance company in advance and then taxpayers must reconcile the advance payments on form 8962 when they file their tax returns. Depending on the amount of credit received and the taxpayer’s modified adjusted gross income, the reconciliation may result in a refund if taxpayers were entitled to a larger credit than they received, or a balance due if taxpayers were entitled to a smaller credit or not entitled to any credit. I’ll avoid going into any further detail about the mechanics of the PTC, but for those looking for more information I encourage you to check out Chapter 29 in the 7th Edition of Effectively Representing.

This order itself is somewhat unexciting; respondent moves for summary judgment and petitioners do not respond. The Court goes on to provide some background information: petitioners received the PTC in 2015, but only reported half of their advance credits on  form 8962. Worse, the form’s reconciliation calculation showed that their income was higher than 400% of the federal poverty line rendering them ineligible for any credit. In their petition the taxpayers did not dispute the material facts (the total PTC amount and their modified adjusted gross income) but expressed frustration with the application process and confusing correspondence from the insurance company, the health insurance marketplace, and the IRS.

The order does not provide any information about whether the taxpayers correctly reported their anticipated income to the marketplace, or if they earned more income than expected – but these facts wouldn’t change the outcome of the case because the taxpayers are still responsible for repaying any excess credit in those situations. See McGuire v. C.I.R, 149 T.C. No. 9.

Taxpayer frustration in this area is sadly a common occurrence. We have had two Tax Court cases dealing with the PTC in my clinic. One case involved an incorrect form 1095-A which the marketplace refused to correct, but we were successful because the clients had documentation and receipts which allowed us to prove to the IRS what a correct form 1095-A would have looked like. The case was conceded by the IRS after we submitted this documentation to Appeals.

The other case involved advance PTC that was paid for a married couple; however, the insurer only effectuated a policy for the husband. The wife’s policy was never effectuated as evidenced by documentation provided to us, somewhat surprisingly, by the (now defunct) health insurance company. In other words, the Treasury was paying a credit to an insurer for a policy that did not exist, and as a result, the taxpayer never received any benefit. We were successful at the Appeals stage in the Tax Court process in this case as well.

We will see what happens in this area as it continues to develop, but it seems that success may be possible in cases where a taxpayer proves that the marketplace or insurance company made a mistake and the taxpayer did not benefit from the mistake.

Now, a summary of the other orders:

  • Napoleon v. Irabago & Zosima Irabagon v. C.I.R., Docket No. 1594-16L (here): This order and decision involves a sad instance of petitioners failing to understand their obligations in the Tax Court process and losing the opportunity to present evidence to reduce their liability. Petitioners initially petitioned the Tax Court on a notice of deficiency for 2010 and 2011. The petition was timely received but petitioners failed to pay the $60 filing fee despite being ordered to do so, and their case was ultimately dismissed. The IRS collection process proceeded, and eventually the taxpayers requested a collection due process hearing and then petitioned the Court on the notice of determination attempting to maintain their original argument (that they have proof of their expenses). Unfortunately, the Court no longer has jurisdiction to hear it.
  • Marvel Thompson v. CIR, Docket No. 29498-12 (here): This order grants respondent’s motion for summary judgment after the petitioner failed to respond. Although the Court said it could grant the motion without further analysis, it proceeds to discuss the merits of the case. Petitioner earned rents and royalties but didn’t file a return for tax years 2007 and 2008. I thought the case might take an interesting turn when petitioner stated that he had been incarcerated since 2004, so he could not have earned income, but in the end the Court finds that he has not met the burden of proving he did not earn the rent and royalty income while incarcerated.
  • Sue Hawkins v. CIR, Docket No. 19223-17 (here): After a decision was rendered in her case, petitioner wrote a letter to the Court which was accepted as a motion for reconsideration. The Court orders the IRS to respond and include information about how much of petitioner’s liability has been paid thus far. The Court also specifically orders petitioner to communicate and cooperate with the IRS as they prepare to respond to her motion and goes even further ordering that she answer their calls and letters. If she fails to do so, the initial decision will stand.

 

 

 

A Light Week at the Court Shines the Light on Pro Se Taxpayers Designated Orders: 11/12 – 11/17/2018

We welcome Professor Patrick Thomas from Notre Dame who brings us this week’s designated orders. Keith 

The Tax Court designated three orders this week—another very light week for the Court. Judges Thornton, Gustafson, and Leyden handled some common pro se taxpayer issues. Judge Gustafson, with a very detailed chronology of a petitioner’s unresponsiveness, ordered dismissal of a pro se taxpayer’s case. The cases from Judge Thornton and Judge Leyden are discussed in more detail below. 

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Docket No. 21411-17L, Dail v. C.I.R. (Order Here)

Judge Thornton grants Respondent’s motion for summary judgment nearly in full. This CDP case with a tax protestor flavor arose from returns that Mr. Dail filed for 2010, 2011, and 2012.

In April 2015, Mr. Dail filed amended returns for each year, in addition to 2009 and 2013. These amended returns reported $0 of taxable income, notwithstanding wages reported on a W2. He also attached to the returns a Form 4852 (a substitute for a Form W2 or 1099), which also reported $0 of wages. The Forms 4582 claimed that the wages are not taxable under sections 3401 and 3121 (which define “wages” for federal income and FICA tax withholding purposes, respectively). Mr. Dail also attached various documents that purported to exempt his wages from taxation, arguing that he was a “private sector citizen (non-federal employee) employed by a private sector company (non-federal employer).”

The Service did not take kindly to these amended returns. It rejected the returns and assessed frivolous return filing penalties under section 6702 of $5,000 per return. An original return filed for 2014 also earned Mr. Dail a $5,000 penalty under section 6702, along with a Notice of Deficiency for the underreported tax and an accuracy penalty under section 6662(a).

 

Subsequently, Mr. Dail received a Notice of Federal Tax Lien and Notices of Intent to Levy for each year in February 2017 and timely field a CDP hearing request—noting again that he’s not liable for any taxes of any sort, and that the IRS didn’t send him a summary record of assessment. He did not seek any collection alternative, but did ask for withdrawal of the NFTL.

The Settlement Officer in the CDP hearing found that he only raised frivolous issues as to the underlying liability, and issued a Notice of Determination sustaining both the NFTL and the levies. Mr. Dail timely petitioned the Notice of Determination to the Tax Court.

Respondent eventually filed the present motion for summary judgment. Mr. Dail didn’t respond; this means that Judge Thornton could have granted the motion solely on that basis under Tax Court Rule 121(d).

But as Tax Court judges often do, Judge Thornton evaluates the merits in this case. Regarding the income tax debts, because Mr. Dail only presented frivolous arguments regarding his underlying liability, section 6330(g) provides that the Tax Court could not consider them (though Judge Thornton cites 6330(c)(2)(B)). Judge Thornton also upheld the section 6702 penalties; he could consider them in a CDP case because Mr. Dail had had no prior opportunity to dispute the liability, given that the Service may assess such penalties directly. He found that the penalties were appropriate because (1) Mr. Dail filed documents purporting to be returns, (2) his claims that his wages were not taxable was substantially incorrect on its face, and (3) his conduct was based on a position that the Service previously identified as frivolous. Finally, Judge Thornton finds no abuse of discretion in the Settlement Officer’s analysis of the collection issues in the CDP Hearing. He also warns Mr. Dail of a section 6673 penalty if he persists in these sorts of arguments.

Respondent, however, doesn’t quite get to a full resolution of the case. For tax year 2014, the Service issued a Notice of Deficiency as to this frivolous return seeking to assess the proper amount of tax on Mr. Dail’s wages. The Notice included a small accuracy penalty. Judge Thornton held that Mr. Dail was also barred from challenging 2014 because he received the Notice of Deficiency and had the opportunity then to petition the Tax Court, but did not.

Nevertheless, Judge Thornton denies summary judgment as to the 6662(a) penalty, because Respondent’s counsel promised, but did not deliver, documents supporting the managerial approval of the penalty required under section 6751.

It seems, at first blush, odd that Judge Thornton could and did deny summary judgment on this issue. He could have simply ruled in Respondent’s favor under Rule 121(d). Mr. Dail was barred from challenging the underlying 2014 liability under section 6330(c)(2)(B) because he’d had a prior opportunity to do so. He was also potentially barred under section 6330(g), because the issues he raised were frivolous.

So how did Judge Thornton reach this result? First, the Tax Court Rules are not ironclad; Tax Court judges often waive harshness under the Rules for pro se taxpayers. Judge Thornton certainly has the discretion to do so here. Further, the particular issue—managerial approval under 6751—isn’t a frivolous issue at all. So the bar under section 6330(g) probably doesn’t apply. Moreover, while Mr. Dail is barred from raising the issue under section 6330(c)(2)(B), the Service must consider, under section 6330(c)(1), whether the requirements of any applicable law or administrative procedure have been met. The Court has authority to review the Service’s analysis under an abuse of discretion analysis. Failure to consider the requirement under 6751 would constitute an abuse of discretion, and so the Court may order the Service to consider the issue. If Respondent’s counsel has the goods, then the Court may resolve this case without a remand to Appeals. If not, then a remand may theoretically be appropriate; more likely, however, Respondent’s counsel will conclude that the approval documents do not exist, and—to expedite their and Appeals’ workload—will concede the issue to fully resolve the case.

Docket No. 307-18L, Chang v. C.I.R. (Order Here)

In Chang, Respondent filed a motion to dismiss for lack of jurisdiction in this CDP case. Petitioner challenged years 1999 through 2010 and 2014 in the Tax Court. Respondent countered that, as to years 2003 and 2008, the Service sent a Notice of Intent to Levy on January 12, 2016 and received a CDP request on February 16. (The other years were more clearly barred from a Tax Court challenge, stemming as they did from an NFTL, for which Petitioner requested a CDP hearing four months late, rather than four days. He’d also challenged 1999 to 2002 in a prior CDP case in the Tax Court).

Petitioner’s CDP request for 2003 and 2008 “[did] not bear a postmark”. Therefore, Judge Leyden ordered Respondent (and later Petitioner) to research and present to the Court evidence on the mailing time between Petitioner’s home and the address on the CDP notice, which appear to both be in Hawai’i. Respondent filed a declaration from customer service manager of the “Downtown Station of Hawaii” (I’m not really sure where “Downtown Hawaii” is…), indicating that the letter was necessarily mailed on February 13, due to intervening weekends and holidays.

Petitioner filed an objection to Respondent’s declaration, noting that it can take up to two days for mail to be delivered between zip codes 96813 and 96816. For those curious, both zip codes are located near downtown Honolulu, Hawai’i, so interisland mailing (which might reasonably take longer than one day), is not in play.

So, Judge Leyden gave Petitioner an opportunity to submit similar information as did Respondent, ordering that Petitioner should present evidence about “when an envelope, properly addressed to the IRS requesting a CDP hearing would ordinarily have been received at the IRS and attach as an exhibit any statement by a U.S. Postal Service employee that petitioner obtains in support of his assertion that the CDP hearing request was timely mailed.”

A few questions that remain for me: how was the mailing delivered without a postmark? I originally thought that Respondent should simply argue that Petitioner cannot rely on the mailbox rule of section 7502, because under the applicable regulations at 26 C.F.R. 7502(c)(1)(iii), the envelope was not properly posted. But of course, the envelope did arrive at the Service, so it must have borne some postmark. The U.S. Postal Service is, after all, not in the business of delivering unposted envelopes. Hopefully Judge Leyden will designate a future order in this matter, so that we can discover the rest of the story.