TAX COURT UNDESIGNATED ORDERS, OCTOBER 2017

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We welcome prolific and keenly observant commentator Bob Kamman as a guest blogger today. For long time readers of our blog who regularly read the comments, you know that Bob has posted many excellent comments on various pieces. He regularly digs further than I do on my posts to find really interesting facts about a case. His knowledge of tax procedure and his willingness to comment so frequently makes him a silent partner to this blog much like Carl Smith is a silent partner through his regular guest posts. Both have greatly enriched and added to what Les, Steve, and I have written. 

Today, Bob writes a post that digs into the undesignated orders of the Tax Court, of which there are many. From those orders he has culled a few that provide insight for those interested in tax procedure. The Tax Court’s order tab is a treasure that needs to be regularly mined and we thank Bob for doing this work and for reminding us of the information that awaits those who go looking at that tab. Keith

“Something there is,” Robert Frost wrote, “that doesn’t love a wall.”  To that I would add, we have our doubts about a barrier built by judges between Tax Court orders, separating those they consider noteworthy from those deemed unimportant.

Curiosity led me to review a few days of undesignated orders earlier this month, and what I found were dozens that are truly mundane and insignificant.  However, I also came across some that would be good material for the textbook that I will never write, “101 Ways To Screw Up In Tax Court.”

I do not propose a regular review of all undesignated orders.  However, it might make a good assignment for a law school procedural class.  Each student can read twenty and report on the best one.  A blog somewhere might share the results.

Here are excerpts from a few that I thought had some redeeming value.

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Docket No. 20199-17

On September 25, 2017, the Court lodged a Request for Place of Trial which improperly seeks to designate Cheyenne, Wyoming, as the requested place of trial in this case. The Court’s records reflect that this case is being conducted under the Court’s regular tax case procedures, and not the small tax case procedures. Only cases conducted under the Court’s small tax case procedures may be tried in Cheyenne, Wyoming. The petition filed to commence this case indicates petitioner is disputing a notice of deficiency. A petitioner may elect to have a case conducted under small tax case procedures only if the amount of deficiency placed in dispute does not exceed $50,000. See I.R.C. sec 7463(a).

Accordingly, Cheyenne, Wyoming, may not presently be designated as the place of trial. Rather, petitioner must either move to add small tax case designation to this proceeding (if it falls within the $50,000 limit explained above) or select an alternative city where regular cases are heard. General information explaining whether to elect regular or small case procedures is posted under the “Starting A Case” tab in the Taxpayer Information section of the Court’s
website at www.ustaxcourt.gov.

Premises considered, it is

ORDERED that, on or before October 25, 2017, petitioner shall file either a proper Request for Place of Trial designating a city at which this Court tries regular tax cases; or, if appropriate, a Motion To Add Small Tax Case Designation.

Docket No. 15074-17

The record in this case reflects that a notice of deficiency for tax year 2015 was sent by certified mail to petitioner’s last known address on April 4, 2017. Based on that mailing date, the last date to timely file a petition with the Court was July 3, 2017. Additionally, the notice of deficiency stated that the last date to file a petition with the Tax Court was July 3, 2017. The Court received and filed the petition on July 12, 2017. The petition was received in an envelope bearing a postmark date of July 6, 2017. Both the filing and mailing dates of the petition were after the last date petitioner could timely file a Tax Court petition with respect to the notice of deficiency for petitioner’s 2015 tax year.
In her objection to the motion to dismiss, petitioner essentially does not dispute respondent’s jurisdictional allegations. Petitioner, however, requests leniency from the Court with respect to the application of the time period for timely filing a petition. Petitioner states that she became confused about the deadline for filing a timely petition because she has received a large amount of correspondence from the IRS and, additionally, her assigned IRS taxpayer advocate provided her with an incorrect deadline for filing a Tax Court petition.

While the Court is sympathetic to petitioner’s circumstances and understands the inadvertent nature of petitioner’s error, we have no authority to extend the statutory period for timely filing. Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). Furthermore, to the extent that petitioner may be claiming that incorrect information from an IRS employee caused her to file an untimely petition, it is well settled that where the Commissioner’s representatives provide erroneous advice based upon a mistaken interpretation of the law, courts and the Commissioner are not bound by the agent’s statements and must follow the applicable statutes, regulations, and case law. See Dixon v. United States, 381 U.S. 68, 72-73 (1965); Auto. Club of Mich. v. Commissioner, 353 U.S. 180, 183 (1957); Neri v. Commissioner, 54 T.C. 767, 771-772 (1970).

ORDERED that respondent’s Motion To Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.

Docket No. 16536-17

An imperfect petition commencing this case was filed on August 3, 2017. On September 18, 2017, an amended petition was filed. Among other things, petitioner seeks review of a purported determination of worker classification allegedly issued to petitioner for 2016 and 2017. October 2, 2017, an Answer to Amended Petition (Index No. 0006) in this case was filed by respondent. A second duplicate Answer to Amended Petition (Index No. 0007) was electronically filed on October 2, 2017. In his Answers (Index Nos. 0006 and 0007) respondent acknowledges that a notice of deficiency dated July 6, 2017, was issued to petitioner for taxable year 2016, but respondent denies that this case is based upon a determination of worker classification issued to petitioner for 2016 and 2017.

Upon due consideration and for cause, it is

ORDERED that respondent’s Answer (Index No. 0007), filed on October 2, 2017, is hereby deemed stricken from the record in this case. It is further

ORDERED that, on or before October 25, 2017, respondent shall file an appropriate jurisdictional motion as to so much of this case relating to the determination of worker classification for 2016 and 2017.

Docket No. 11800-15, 11830-15

These consolidated cases are calendared for trial at the San Diego, California Session of the Court commencing on November 13, 2017.

On September 29, 2017, respondent filed a Motion for Order to Show Cause Why Proposed Facts and Evidence Should Not Be Accepted as Established Pursuant to Rule 91(f). Respondent requests the Court to order petitioners to show cause why the facts and evidence set forth in respondent’s proposed Stipulation of Facts, which was attached to respondent’s motion and marked “Exhibit A”, should not be accepted as established for purpose of these cases.

Respondent’s motion states that respondent’s counsel called petitioners’ counsel [name deleted] on September 29, 2017. The individual who answered the telephone at the law offices indicated that [he] was not available. Respondent’s counsel left a message that respondent would be filing two motions in these cases and that she would like to discuss the motions with [him]. The receptionist indicated that she would let [the attorney] know that respondent’s counsel called.

Respondent’s counsel subsequently received a voicemail message from petitioners’ counsel stating that petitioners would be responding to respondent’s Request for Admissions at a later date. Respondent’s counsel returned petitioners’ counsel’s telephone call. The individual who answered the telephone at the law offices indicated that [he] was not available. Because [the attorney] never returned respondent’s counsel’s call, she does not know petitioners’ counsel’s position with respect to respondent’s motion.

Giving due consideration to respondent’s motion and after reviewing the proposed Stipulation of Facts, it is hereby

ORDERED that respondent’s Motion to Show Cause is granted, and petitioners shall file on or before October 18, 2017, a response in compliance with the provisions of Rule 91(f)(2) showing why the facts and evidence set forth in respondent’s proposed Stipulation of Facts, marked Exhibit A, should not be deemed accepted as established for purpose of these cases. If petitioners do not file a response by October 18, 2017, or if petitioners’ response is evasive or not fairly directed to all matters in the proposed Stipulation of Facts, or any portion thereof, that matter or portion to which the response is evasive or not fairly directed will be deemed stipulated for purposes of these cases, and an Order will be entered accordingly pursuant to Rule 91(f)(3).

Docket No. 16931-17S

The record reflects that respondent mailed a notice of deficiency to petitioners for 2015 on May 8, 2017. The 90-day period under I.R.C. section 6213(a) for filing a timely petition as that notice expired on August 7, 2017. The petition, filed August 9, 2017, arrived at the Court in an UPS shipping envelope bearing a UPS Next Day Air label bearing Tracking #1Z0314330167665538. That petition had been mistakenly mailed by petitioners on August 4, 2017, to the IRS in Andover, Massachusetts. The IRS in Andover, in turn, forwarded that petition via UPS Next Day Air to the Tax Court, in Washington, D.C., on August 8, 2017– one day beyond the 90-day filing period.

ORDERED that respondent’s Motion To Dismiss for Lack of Jurisdiction, filed September 11, 2017, is granted and this case is dismissed for lack of jurisdiction.

Docket No. 9239-17

On May 2, 2017, the Court ordered that on or before June 16, 2017, petitioner was to file the disclosure statement required by Rule 20(c), Tax Court Rules of Practice and Procedure.

On May 23, 2017, petitioner did file a disclosure statement with the Court. That statement is not complete in that it does not set forth the information required therein. For example, the disclosure statement requires petitioner, if it is a nongovernmental corporation, to provide the names of, inter alia, “[a]ll parent corporations, if any, of petitioner, or state that there are no parent corporations”.

Petitioner did not provide in the disclosure statement that it filed the names of any parent corporations; nor did petitioner indicate in that statement that there are no parent corporations, as required by the disclosure statement.

After due consideration and for cause, it is

ORDERED that petitioner shall file an amended disclosure statement which petitioner shall properly complete, as required by that statement. Such amended disclosure statement shall be received by the Court on or before October 17, 2017. A copy of an Amended Ownership Disclosure Statement is attached to this Order.

For any party who does not make filings electronically, please note that the Court is experiencing brief delays in the delivery of U.S. Postal Service mail. However, timely deliveries by private carriers have not been interrupted.

Docket No. 14651-11, 14652-1111087-12

These cases were on the Court’s October 19, 2015 trial calendar for San Francisco, California. They had been continued numerous times, and the Court and parties have tried various ways to move things ahead. The highest numbered case features a request for innocent-spouse relief. Ms. Briguglio has now served petitioner Murray with requests for admission that he has not responded to. This may enable the filing of a summary-judgment motion on this issue. The other cases are straight deficiency cases, and respondent reports assembling thousands of pages of documents that are likely headed to a proposed stipulation under Rule 91(f). This is good progress under the circumstances. The parties reasonably suggest checking in again at the end of the year, and it is

ORDERED that on or before December 15, 2017 (a) respondent move for an order to show cause under Rule 91(f) or file a status report to describe his progress in resolving the cases; and (b) petitioner Briguglio file a motion for summary judgment or file a status report to describe her progress in resolving her case.

Docket No. 16057-14

On October 3, 2017, respondent filed a Motion To Calendar, in which respondent indicates that petitioners have no objection to the granting thereof. Upon due consideration, it is

ORDERED that jurisdiction of this case is no longer retained by Judge Ronald L. Buch. It is further

ORDERED that the motion to calendar is granted in that this case is calendared for trial at the Trial Session of the Court scheduled to commence at 10:00 a.m., on December 11, 2017, in Room 1167, Edward R. Roybal Center & Federal Building, 255 E. Temple Street, Los Angeles, California 90012.

[NOTE: A docket inquiry shows that this is the seventh trial date set for this 2014 case.  Previous trials were set and then continued for May 5, 2015; October 5, 2015; February 1, 2016; June 13, 2016; November 14, 2016; and April 17, 2017.]

 

 

 

 

 

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