Designated Orders: 11/13 to 11/17/2017

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We welcome back Patrick Thomas who directs the tax clinic at Notre Dame. Patrick had a busy week for orders as the Court cleared out cases in preparation for Thanksgiving week. All of the material is good but Patrick covers what happens from a collection perspective when you lose a Tax Court case and take an appeal. This is not a topic we have addressed previously. Keith

I’ve begun the last few posts noting that it was a “light week” for designated orders; I seem to have tempted the Designated Order gods, because this past week there were nine total orders, with three bench opinions by Judge Gustafson and other very meaty orders. They included Judge Gustafson’s request that parties file supplemental briefs regarding the whether a new matter existed under Rule 142(a) sufficient to shift the burden of proof to the IRS; Judge Panuthos’s dismissal of a CDP matter for mootness due to full payment of the liability; and Judge Holmes’s denial of a motion to for reconsideration. Finally, two of the bench opinions raise interesting substantive tax law issues: one opinion looks at the increase in a home’s basis due where the taxpayer engaged in both bank and bankruptcy fraud during the home’s sale. Another explores the blurry line between physical and emotional damages in section 104(a)(2), and is deserving of fuller discussion.

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Dkt. # 22795-16L, Gardner v. C.I.R. (Order Here)

When an order begins with a teaser that the Court is assessing a section 6673 penalty for the maximum $25,000 amount, my interest is piqued. Upon researching the Gardner’s substantial history in the Tax Court, with the IRS, and even in the U.S. District Court, I can understand why. They appear to be incorrigible tax protestors, deserving perhaps of a far greater penalty than the $25,000 statutory maximum under section 6673. That is, the Service may want to start looking at sections 7201 et seq.

According to Judge Vasquez in a prior opinion, the Gardners have not filed a federal income tax return since 1993. At that time, the Gardners founded “Bethel Aram Ministries”, which served as vessel through which to promote their abusive tax shelter. The shelter’s design required income to be “donated” to corporations (called a “corporation sole”) that the taxpayer owned. The taxpayer would then deduct the “donation” as a charitable contribution. Further, any business income was to be routed through a trust which owned a majority interest in an LLC that operated the business. The trust would also donate its income to the corporation sole, which would pass tax-free to the taxpayer. The Gardners were enjoined from promoting this shelter and were subjected to a penalty under section 6700 of $47,000 for so doing.

The Gardners apparently made substantial income from promoting this shelter (approximately $250,000 in 2004; one wonders about the effectiveness of a $47,000 penalty), but didn’t report the income or pay any tax on it. The IRS assessed tax and additions to tax under section 6020(b) for 2002, 2003, and 2004, which were upheld by the Tax Court and the Ninth Circuit. The total owed across these three years was approximately $263,000.

The Gardners eventually challenged a CDP levy notice for 2004, which made its way to the Tax Court last year. Judge Lauber upheld the Notice of Determination, and also assessed a $10,000 section 6673 penalty because of the Gardners’ largely frivolous arguments (e.g., accusing the IRS of lying, defamation, and conspiring to deny their First Amendment rights to freedom of speech and religion), warning the petitioner “that she risks a much larger penalty if she engages in similar tactics in the future.”

The Gardners now challenge a CDP lien notice for 2002 and 2003, apparently using the same arguments in their challenge to 2004 (e.g., that they do not owe the tax assessed). The tax was determined in a deficiency proceeding in which the Gardners participated, so they certainly had no right to challenge the liability in either CDP hearing. Yet try again as they do (recycling the same frivolous arguments as before), Judge Halpern executes Judge Lauber’s warning, and assesses a $25,000 penalty under section 6673. Are nearly $400,000 in tax and penalties enough to stop the Gardner’s intransigence? Color me skeptical.

Judge Halpern spent some time going through the Gardners’ substantive arguments. Some of the arguments addressed strike me as those that the Tax Court routinely skips (e.g., that the failure to sign Form 1040 nullifies any assessment, or that the signatures on the Form 4340 summary records of assessment constitute perjury). One wonders where individual judges and the Tax Court as an institution do and should draw lines regarding such arguments.

One procedural item worth mentioning (as I don’t see that we’ve covered it before), is the propriety of an assessment while an appeal from the Tax Court is pending. Under section 7485, sections 6213(a) and 7481 bar assessment and collection during an appeal only if the taxpayer files a notice of appeal, along with a bond of up to twice the deficiency. Otherwise, the tax may be assessed once the Court enters its opinion.

Here, the Gardners argued that because the assessment occurred while their Ninth Circuit appeal was pending, section 6213 barred the assessment. However, the Gardners failed to either post a bond or ask the Tax Court for a bond in a lower amount. They complained that the Tax Court should have fixed a bond for them, and that the bond should have been waived given their lack of income. Judge Halpern dispenses with both arguments, as the Gardners did not comply with section 7485. There’s also nothing in the statute to suggest that the Tax Court must or may fix a bond amount sua sponte.

Judge Halpern’s opinion shows that litigants can either (1) pay the full statutory maximum of twice the deficiency, or (2) file a motion to fix a bond in a lesser amount. He further notes that the court does not have any statutory discretion to waive section 7485, even for cases of financial hardship. I wonder if any Clinics lucky enough to litigate an issue up to the Courts of Appeal have contended with section 7485. While Judge Halpern notes the statutory restriction that a bond of some kind must be set, could it perhaps be set at $1 in cases of financial hardship, accompanied by a substantial legal question?

Dkt. # 20104-14L, Bongam v. C.I.R. (Order Here)

One of Judge Gustafson’s three bench opinions explores a number of a procedural issues. Mr. Bongam (the litigant in the important case of Bongam v. Commissioner, 146 T.C. 52 (2016), which held that the 30 day period for petitioning the Tax Court begins when the notice of determination is mailed—not the date of the notice of determination) was involved with two companies—Dynamic Visions and One Stop Medical Supplies—that ultimately failed to properly withhold and pay over their employee’s taxes to the IRS. Accordingly, given Mr. Bongam’s involvement in both companies, the IRS assessed a Trust Fund Recovery Penalty against him. The IRS filed a Notice of Federal Tax Lien regarding the assessments, the IRS upheld the lien at a CDP hearing that Mr. Bongam timely requested, and Mr. Bongam petitioned the Tax Court.

In the CDP hearing and at trial, Mr. Bongam asserted that while he both possessed co-signature authority and was a shareholder and officer at One Stop, he had no operational authority in the business; that was reserved to the lone employee in the organization, a Mr. Forkwar. As such, he had no idea that the payroll taxes were going unpaid.

One can only challenge the underlying liability in a CDP case if the taxpayer didn’t have a prior opportunity to dispute that liability. For most TFRP cases, this opportunity generally presents itself in the right to request an administrative review from IRS Appeals, after the TFRP is proposed. While opportunity for judicial review exists as a matter of course for TFRPs, under current law, a chance to appeal administratively will constitute a prior opportunity.

But if the taxpayer doesn’t receive notice of that opportunity, it’s not really an opportunity at all. Here, Mr. Bongam didn’t receive the Letter 1153 assessing the TFRP for One Stop—though IRS Appeals initially believed he had. They relied on the Letter 1153 that assessed Dynamic’s TFRP, not One Stop’s. Further, a second Letter 1153 that assessed TFRPs for One Stop didn’t have a certified mail response card; so, the Court held, its delivery couldn’t be confirmed. As such, Judge Gustafson allows Mr. Bongam to challenge his TFRP for One Stop, and finds on the merits that Mr. Bongam was not a responsible person.

For Dynamic, there were no problems with delivery of the Letter 1153 according to the Court. While Mr. Bongam stated at trial that he didn’t receive the letter and that the signature on the certified mail receipt was not his, Judge Gustafson didn’t find that credible. The Court even compared that signature to those on Mr. Bongam’s pleadings, and found them to be similar. I’m not sure that’s a proper role for the Court, but the other evidence at hand safely shows that Mr. Bongam received the Letter 1153. And, in any case, Judge Gustafson notes the Mr. Bongam was a responsible person who willfully failed to withhold and pay over Dynamic’s payroll taxes.

While Mr. Bongam cannot challenge the liability, he may challenge whether that liability has been paid. Indeed, he raised such a claim, submitting various checks that were made payable to the IRS. Judge Gustafson views this challenge not as one to liability, but as one regarding either whether the tax is “unpaid” for purposes of section 6330(c), or an IRS verification failure under section 6330(c)(1).

Either way, for many of the checks, Mr. Bongam wasn’t able to show that they were made to satisfy the trust fund portion of the liabilities. This raises an incredibly important issue for anyone dealing with a TFRP case. From a potential responsible person’s perspective (at least, one who can control payment of payroll taxes by the employer), any voluntary payments from the employer towards the payroll tax liability ought to be designated to the trust fund portion of the liability; that is, the portion constituting income tax and the employee’s portion of FICA taxes. Otherwise, the payments will may be applied to the employer’s portion of FICA taxes—for which a responsible person is not liable under section 6672.

Dkt. # 18773-16W, Depadro v. C.I.R. (Order Here)

Finally, this is your periodic reminder that to claim a whistleblower award under section 7623, the IRS must both act upon the information provided through instituting an administrative or judicial action AND collect tax from the target of that action. The petitioners here alleged that the IRS was negligent in failing to do so, and on that basis, the petitioners should receive a monetary award. Judge Guy quickly dispenses with that argument (facially persuasive though it might sound to a wannabe whistleblower) and grants the Service’s motion to dismiss.

 

Comments

  1. Norman Diamond says:

    Sure frivolous arguments deserve to be penalized, but what are these?

    “assessed a $10,000 section 6673 penalty because of the Gardners’ largely frivolous arguments (e.g., accusing the IRS of lying, defamation, and conspiring to deny their First Amendment rights to freedom of speech and religion),”

    When the IRS files exhibits that contradict each other, isn’t it pretty non-frivolous to accuse the IRS of lying? When withholding that was already collected (which I learned from this blog that the IRS is statutorily required to investigate, which could be done by asking the stockbroker’s office in Bensalem USA if the Form 1099 was true or not) exceeds penalties that were assessed (for which the IRS waited until the CDP case was in Tax Court before finally stating a reason), wouldn’t it be pretty much non-frivolous to suggest that the lien is defamation?

    “Some of the arguments addressed strike me as those that the Tax Court routinely skips (e.g., […], or that the signatures on the Form 4340 summary records of assessment constitute perjury).”

    When IRS administrative records contradict each other, when Form 4340 deletes records of the existence of a return which clearly did exist, or when Form 4340 deletes records of collection which other IRS records show was performed, isn’t it pretty much non-frivolous to suggest that the signatures on Forms 4340 constitute perjury?

    “He [Judge Halpern] further notes that the court does not have any statutory discretion to waive section 7485, even for cases of financial hardship.”

    Often that would seem not to matter, because assessment isn’t collection, and fraudulent assessment isn’t a cause of action. But now that fraudulent assessment can result in passport revocation, it seems not quite constitutional.

    When someone creates an abusive tax shelter and makes actual frivolous arguments to try to avoid penalties, sure they need more penalties. But slaughtering 100 innocent people along with the 1 criminal isn’t the way to do it.

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