Caleb Smith

About Caleb Smith

Caleb Smith is Visiting Associate Clinical Professor and the Director of the Ronald M. Mankoff Tax Clinic at the University of Minnesota Law School. Caleb has worked at Low-Income Taxpayer Clinics on both coasts and the Midwest, most recently completing a fellowship at Harvard Law School's Federal Tax Clinic. Prior to law school Caleb was the Tax Program Manager at Minnesota's largest Volunteer Income Tax Assistance organization, where he continues to remain engaged as an instructor and volunteer today.

Lazy Mid-Summer Tips and Traps: Designated Orders August 12 – 16, 2019

It was a fairly lax mid-August week at the United States Tax Court. There were only three (non-duplicative) designated orders issued. One was a common example of the taxpayer simply not giving the IRS anything to work with in a CDP hearing and won’t be discussed (found here). The other two, however, provide a few useful tips and traps of general application worth noting.

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What Time-Zone Determines Timely (Electronic) Filing? NCA Argyle LP, et. al. v. C.I.R., Dkt. # 3272-18 (order here)

One of the more interesting tidbits from this week’s designated orders was buried in a footnote. The order above mostly dealt with an objection to the IRS’s motion for a deposition that (petitioners felt) came way too late to be fair (i.e. one month before trial). But it isn’t the timing of IRS’s motion that is interesting, but the timing of the petitioner’s objection. 

When the IRS moved to compel depositions the Court ordered petitioners to file any response by August 14. I’m assuming this case involves big dollars, because petitioners are partnerships and LLCs represented by expensive law firms in California. Those law firms are probably very busy, with lawyers working very late hours. So they figured they’d electronically file their response on August 14th at 10:04 pm… Western time.

And why not? The “Practitioners’ Guide to Electronic Case Access and Filing” stated (but has since been changed as a result of this order) at page 42 that “A document is considered timely filed if it is electronically transmitted no later than 6:00 a.m. Eastern time on the day after the last day for filing.” [Emphasis added.] In other words, the petitioners had almost six more hours to get their response in, if you take the practitioner’s guide seriously.

Alas, in the hierarchy of legal authority the “Practitioner’s Guide” is a step below Tax Court Rule 22. That rule states (effective November 20, 2018) that “A paper will be considered timely filed if it is electronically filed at or before 11:59 p.m., eastern time, on the last day of the applicable period for filing.” [Emphasis added.] Petitioner’s response was filed 10:04 p.m. the day of the filing deadline… but only on western time. We live in an east coast dominated country (take it from a mid-westerner). In the time-zone that matters, the response was late by a solid hour and five minutes. 

As a side-bar, it is important that other courts have different rules than the Tax Court. For example, as discussed here one preliminary difference is that Federal District Court determines the effective date of a complaint based on receipt, and not when it is mailed. Second, other courts (including Federal District Courts not located in Washington D.C.) are unlikely to set a deadline of 11:59 Eastern Time. The Federal District Court for Minnesota provides that an electronic document is timely if submitted “prior to midnight on its due date.” See page 4 of the ECF User Guide here. Though a time-zone is not provided (which midnight are we talking about?) one would surmise the Central Time zone, since the next rule covering timely paper filing sets the deadline at 5:00 p.m. Central Time on the due date. These rules from the ECF User Guide comport with the Federal Rules of Civil Procedure, which provide that for calculating the “last day” you generally look to the time zone in the court you are filing with. See FRCP Rule 6(a)(4).

So, bringing it back to Tax Court, is the West Coast law firm response thrown out for being filed out of time? Judge Buch is not one to stand on such formalities, stating that “no one was prejudiced by the 65 minute delay” and allowing it to stand.

Nonetheless, while this slight timeliness issue does not end up causing any problem for the parties in this case, it is important to recognize how different it would be if the deadline at issue was “jurisdictional.” As both Carl and Keith have extensively written about, based on the Tax Court’s current interpretation of the law, Judge Buch’s hands would be tied: deprived of jurisdiction, he would also be deprived of the ability to excuse the timeliness issue (say, for lack of prejudice, or more likely equitable tolling).   

Who To Ask For Help: Tax Court Isn’t a One-Stop Shop. Crawford v. C.I.R., Dkt. # 4318-18L (order here)

We have previously seen that the Tax Court is reluctant to stand-in as a federal district court on FOIA issues (see post regarding Cross Refined Coal, LLC here) or dismiss a case where it is up to the bankruptcy court to amend the stay (see post regarding Betters v. C.I.R., here). In the above order we have a similar issue involving the enforcement of a federal district court injunction. 

Essentially, the petitioner in this case has received informal Tax Court assistance (that is, no entry of appearance under Rule 24) from someone the IRS doesn’t much care for. And likely for good reason: the individual assisting the petitioner is associated with the Williams Financial Network, currently under indictment for a $5 million fraud scheme. The IRS accordingly has enjoined all individuals associated with that entity from “representing people before the IRS.” Of course (or as sometimes needs to be explained to taxpayers), the Tax Court is not the IRS so those individuals are not (technically) prohibited from representing petitioners before the Tax Court if they otherwise meet the requirements of Rule 200

(As an aside to new tax court practitioners, don’t overly concern yourself with the reference to a “periodic registration fee” in the rules to practice. Once, in a fit of stress, I called the Tax Court to see if I was current on the fee (I couldn’t ever remember paying) and was told they hadn’t actually required it for decades.)

It isn’t clear if the individuals associated with the Williams Financial Network meet the requirements of Rule 200 (I’d bet they don’t), but that isn’t really the problem. The problem is that the IRS asks the Tax Court to essentially make up rules and exercise power it probably doesn’t have: that is, the IRS asks Judge Buch to order that the individuals helping the petitioner be prohibited from doing so when the case is remanded to IRS Appeals. Judge Buch declines to do so: the Tax Court wasn’t the court that issued the injunction, and the Tax Court has no rules on who can represent people before the IRS, just who can represent them before the Tax Court. 

In other words, if Williams Financial Network violates the district court injunction it’s not the Tax Court’s problem, and not their place (or power) to fix it. 

Sticker Shock and Settling on the Issues: Designated Orders, July 15 – 19

There were five designated orders for the week of July 15, three of which were perfunctory decisions in collection due process cases where the petitioner “filed and forgot” -in other words, after filing the petition, the taxpayer stopped doing much of anything to advance their case or respond to court orders. For the curious, those orders are here, here, and here. The remaining two orders appealed to my dual professional obligations: lessons in working with clients and teaching tax law. We’ll begin with one of the messy issues that arise in working with clients in tax controversy: backing out of settlement.

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Stipulated Issues and Sticker Shock: Kirshenbaum v. C.I.R., Dkt. # 10135-17S (order here)

The parties in this case have agreed on virtually everything, and even signed a stipulated settlement… and yet now the Kirshenbaums are having second thoughts. Why might that be? When the (fairly simple) issues are settled, the amount of tax that results is almost entirely a matter of math. My bet is that the Kirshenbaum’s had second thoughts when the numbers flowing from the stipulated words began to coalesce. A sticker-shock on the tax that would be due… and a sudden (futile) desire to renege. As an attorney, it demonstrates the two different languages you have to speak in settling tax matters: dollars and cents to the client, issues and law to the IRS. The last thing you want is the client backing out of settlement, wanting to argue issues with little merit, because they now realize that the merits mean they will owe more than they’d like.

The Kirshenbaum’s situation demonstrate how quickly taxes and penalties can cascade when there are errors on the return, and the return was late filed. To begin with, for late filers the “failure to file” penalty (IRC 6651(a)(1)) is a much quicker way to increase your bill than just filing on time without paying: the penalty accrues at a 5% monthly rate (to a maximum of 25%) rather than the 0.5% rate for failing to pay. Further, the amount of tax that the failure to file penalty is multiplied against is the amount “required to be shown on the return” (i.e. not necessarily the amount you actually report), so a later audit can retroactively bump up your penalty quite a bit. 

There is really no benefit I can think of to filing late, even if you are going to get late payment penalties. Perhaps the Kirshenbaum’s had a legitimate reason for filing late (though to get out of the penalties for “reasonable cause,” you generally need a really good reason, and demonstrate that you exercised “ordinary business care and prudence.” See Boyle v. C.I.R., 469 U.S. 241 (1985) and Les’s post on issues in the e-file age).

In any event, the Kirshenbaum’s return was both filed late and filled with easily detectable errors. The first easily detected error was a matter of calculation: the amount of taxable social security they reported (note that this wasn’t an instance of omitting social security income, but listing an amount received, and a corresponding “taxable” amount that doesn’t add up). That error was (presumably) fixed through IRC 6213(b)(1) “math error” authority. But then, on second (likely automated) look, the IRS also noticed that the return completely omitted roughly $38,006 of retirement distributions. A notice of deficiency was issued showing the increased tax, as well as increased failure to file penalty, along with an IRC 6662(a) penalty for good measure. That added up to a bill likely over $12,000, which the Kirshenbaums were not going to take lying down.

And their fight may actually have saved them some money, but only with regards to the IRC 6662 penalty. The other issues were largely foregone conclusions: if the additional retirement distribution was received and omitted by the Kirshenbaums, there would be additional tax due on it, as well as an increase in their taxable social security benefits simply as a matter of cold math. Since it was fairly clear that the additional retirement distributions were received (and taxable), the IRS and the Kirshenbaums were able to stipulate all of the issues, with the IRS conceding the IRC 6662 penalty (perhaps in good faith, perhaps because of a procedural infirmity). The Kirshenbaums signed the stipulation of settlement, thus avoiding the need to appear at calendar. All that remained was the decision document with a calculation of the deficiency (per Rule 155).

But when that calculation was done, the Kirshenbaums wanted to backtrack and argue the very issues they had stipulated to. The Tax Court was not having it: “They entered into an agreement, and we will hold them to their word.” Further, as Judge Gustafson alludes, there doesn’t really appear to be a “serious dispute to maintain about the matters[.]” The Kirshenbaums are grasping, agreeing that they received the retirement proceeds but picking fairly arbitrary amounts to treat as taxable. The Court isn’t going to play that game, especially after you fail to show up at trial after agreeing to all the issues. 

The most “difficult” clients I have are the ones that agree to the issues but want me to try to get the IRS to knock a few more dollars off the deficiency purely as a matter of negotiation. When the merits aren’t clear and there are hazards of litigation, there can be some wiggle room (see IRM But where the correct outcome is clear there is really no “art of the deal” magic that can be done. This reality, I think, cuts against the popular conception of what lawyers do in back-room negotiations. At its worst, it can lead to clients wanting to back out of settlement when the issues are clear, as they were in the Kirshenbaum’s case. For an interesting and more detailed look at when settlement becomes binding, including when the IRS unexpectedly backs out, I highly recommend Keith’s piece here.

Bench Opinions, Substantive Law, and Innocent Spouse: Mayer v. C.I.R., Dkt. # 23397-17S (order here)

The crew at Procedurally Taxing have blogged about the value and nuances of S-cases and bench opinions before: here, here, and here. Keith has also written about bench opinions in more detail here. In the above order we have a bench opinion on an innocent spouse case that presents some interesting, though clearly not precedential, substantive application of IRC 6015(b) and (c). Because bench opinions are non-precedential (and not reviewed), the Judges sometimes appear more willing to bite on general equity concerns (even if they don’t present their opinions with that explicit rationale). To me, this opinion had some hints of that, and possibly even gets the law itself a bit wrong. 

The relevant facts can be boiled down to the following: husband (the requesting “innocent” spouse, in this case) and wife want to buy a house. To pay for it, they have to rely on their 401(k)s. Husband decides to borrow against the 401(k), whereas wife just takes a straight withdrawal. Wife pretty much controls the finances, including preparing the tax returns. When it comes time to file, wife omits the 401(k) withdrawal. Husband “paid little or no attention to the return” and signs it. The legal question at issue seems pretty straightforward: did the husband have “reason to know” of the understatement of tax by omitting the 401(k) withdrawal? He clearly knew she received money (i.e. knew of the transaction): is that enough for him to have “reason to know” of the understatement?

Judge Buch says “no, the husband did not have reason to know” because he was “not aware that there was an understatement,” since he did not really pay attention to the return when he signed it. Judge Buch also finds the other elements of IRC 6015(b) are met, including equity concerns, because “there is no indication that [the husband] benefitted in any way from [the 401(k) withdrawal].” 

I question both of those conclusions, but my bigger issue (as I’ll get to) is the legal reasoning applied to IRC 6015(c). For now, I’d say that I find it curious that in this case the husband appears to benefit from “paying little or no attention to the return” rather than asking reasonable questions… like whether his wife borrowed or withdrew the money he knows she took from her 401(k). See Treas. Reg. 1.6015-2(c). Similarly, I find it a bit charitable to say that he did not benefit from the withdrawal, when it went towards the purchase of their marital home. But perhaps there were other facts I am unaware of (including what happened to the home after the fact) that could better lead to those conclusions. 

Still, while there may be additional facts not referenced in the opinion that led to the decision (and the intervening ex-wife may also not have advanced her case well), the application of the law under IRC 6015(c) was a bit more troublesome to me. Generally, IRC 6015(c) relief is easier to get than relief under IRC 6015(b), because under (b) the requesting spouse can’t have “reason to know” of the understatement, whereas under (c) the requesting spouse can’t have “actual knowledge” of the item giving rise to the deficiency. The IRS bears the burden of proof in showing “actual knowledge” of the requesting spouse, which only makes the relief that much easier to come by. 

Judge Buch finds no “actual knowledge” of the item leading to the deficiency in this case because, again, the husband “was not aware that [his wife] took a premature distribution [rather than a loan] from a retirement account.” But is the fact the husband didn’t know (without asking) whether it was a loan and not a taxable distribution relevant, if he clearly knew that she received the money leading to the deficiency? And that is where I believe there was an error in the legal analysis.

Quoting King v. C.I.R., 116 T.C. 198 (2001), Judge Buch describes actual knowledge as “actual knowledge of the factual circumstances which made the item unallowable as a deduction.” He also directs readers to Treas. Reg. 1.6015-3(c)(2)(B) to further bolster the proposition. 

And Judge Buch is correct, as far as deductions go. But the “erroneous item” in this case is not a deduction: it is an omission of income. In fact, one paragraph above the treasury regulation cited to is a completely different standard for omitted income: “knowledge of the item includes knowledge of the receipt of income.” Treas. Reg. 1.6015-3(c)(2)(A). Both King and the regulation cited appear inapposite. In fact, much of King is spent discussing another precedential Tax Court case, Cheshire v. C.I.R, 115 T.C. 183 (2000) that expressly found you don’t need to know the tax consequences of an omitted retirement distribution to have “actual knowledge” of the item. Cheshire seems close to being on all-fours with the husband’s matter. King expressly reaches a different conclusion for actual knowledge of deductions, while preserving Cheshire’s actual knowledge of omitted income inquiry. 

Conceptually, I think there is a pretty good reason to hold taxpayers to a higher standard in relief from omissions of income than improperly taken deductions. I would say this is in part because income is presumably taxable, whereas deductions, as we are frequently told, are matters of legislative grace. In other words, you don’t have to be a tax expert to suspect that income should be on a return, whereas you do have to be closer to an expert to know if most deductions are really allowable.

To me, the innocent spouse husband got a far better deal than he would have if this were not a bench opinion. Apart from not being reviewed by other judges, bench opinions are given without the benefit of briefing from the parties (apart from, perhaps, pre-trial memoranda, which are generally optional in S-Cases like this one). I’d hope that IRS counsel would have hammered home on the distinction between omitted income and erroneous deductions if this were briefed. I am generally a fan of bench opinions when it involves simple questions of fact (and have been on the receiving end of a favorable Buch bench opinion in the past.)

I tell my tax procedure students that innocent spouse is about as far from typical tax law as you can get -that it usually involves equity and factual determinations far more than most other provisions in the Code. It is also fairly convoluted, as a matter of statute and regulation, because “innocent spouse” comes in three flavors. This bench opinion, perhaps, illustrates how easy it is to get tripped up on all the flavors and permutations even as a tax law expert. 

Application of IRC 6015, and particularly equitable relief under IRC 6015(f) is still being developed by the courts (and in some ways, by Congress in the Taxpayer First Act (see post here)). I believe the Court should have found “actual knowledge” from the requesting spouse in the above order, thus ruling out IRC 6015(c) relief. Since “actual knowledge” would necessarily meet the IRC 6015(b) “reason to know” standard, one would think that the only remaining avenue for relief would be “equitable relief” under IRC 6015(f) (Judge Buch found that the taxpayer was eligible for both (b) and (c), which both rules out and makes unnecessary relief under IRC 6015(f)). However, as noted in a previous post, the Tax Court appears to have taken a position that effectively makes “actual knowledge” a trump card, or at least far too heavily weighted as a factor, that may even preclude relief under IRC 6015(f). Keith and Carl have been working with that issue (the interplay of actual knowledge and equitable relief) in a case that is presently before the 7th Circuit. I naively hope that a decision is reached before I teach my class on innocent spouse relief this fall.

Things That Happen to Your Tax Court Case When You File Bankruptcy or Your Judge Retires: Designated Orders, June 17 – 21

There were six designated orders for the week of June 17 – 21, of which three are worth going into detail on. The remaining three orders can be found here, here, and here. The orders that will be addressed raise some interesting issues with the interplay of bankruptcy and collection due process cases, as well as what happens when the judge that heard your case retires before rendering a decision.

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Does Dismissing a Collection Due Process Case Violate the Automatic Stay of Bankruptcy? Betters v. C.I.R., Docket # 8386-17L (here)

One of the most powerful provisions in the bankruptcy code is the automatic stay at 11 U.S.C. 362. Violating the stay can lead to claims (whether successful or not) of damages and attorney’s fees against the IRS (as Keith blogged here). The automatic stay essentially gives whomever files bankruptcy some “breathing room” from creditors while sorting things out by pausing (or preventing) most collection actions (see Keith’s post on the effect of the automatic stay and a notice of federal tax lien, here). One specific thing that the automatic stay touches is “the commencement or continuation of a proceeding before the United States Tax Court […] concerning the tax liability of a debtor who is an individual for a taxable period ending before the date of the order of relief” through the bankruptcy court. See 11 U.S.C. 362(a)(8). 

In the order above, the taxpayer filed his Tax Court petition in response to a Collection Due Process determination (that presumably would have upheld a levy action). People who have unpaid taxes frequently have other unpaid debts, and a few years later while the case was still pending in Tax Court the taxpayer filed a petition with the U.S. Bankruptcy Court. Now the taxpayer wants to get out of Tax Court and just deal with the whole thing in Bankruptcy Court. And the IRS has no objection to going that route.

The question is whether the Tax Court can dismiss the case without violating the stay, even if both parties want that result. The answer, according to Chief Special Trial Judge Carluzzo, hinges on the application of Settles v. C.I.R., 138 T.C. 372 (2012). Both the IRS and the petitioner say that Settles applies, such that the case can be dismissed. Judge Carluzzo, however, disagrees.

In Settles, the taxpayer had a collection case he wanted dismissed, while he had a bankruptcy case with a stay still in effect. The Tax Court allowed the voluntary dismissal of the case. The one (big) difference: in Settles the bankruptcy court had already adjudicated the merits of the tax liabilities, and all that was left were non-tax creditors. And that difference is enough for Judge Carluzzo to say that no voluntary dismissal is presently allowed: if you want to dismiss the case, take it up with the bankruptcy court to have them modify the stay.  

So even though the parties want it dismissed, Judge Carluzzo’s hands are tied. I’d note in passing that if the case were a deficiency proceeding, and not a collection action, the option of voluntary dismissal would be more obviously unavailing: once you invoke the Tax Court’s jurisdiction in a deficiency case there is no way out absent a determination by the Tax Court. Compare Estate of Ming v. Commissioner, 62 T.C. 519 (1974) with Wagner v. Commissioner, 118 T.C. 330 (2012).

The other order that involved bankruptcy (Wilson v. C.I.R., dkt. # 25218-18SL (order here)) deserves much less explication, but serves as a warning for taxpayers that think bankruptcy is a cure-all for tax debts. It is another collection action where the petitioners filed bankruptcy involving the tax years at issue, but in this instance the bankruptcy case was over well before the Tax Court order was issued. However, because the tax debts at issue were for returns that were due within three years of the bankruptcy petition they were non-dischargeable in Chapter 7 (see 11 USC 523(a)(1)(A) and 11 USC 507(a)(8)). The Bankruptcy court puts things in plain English for the taxpayer in their “Explanation of Discharge,” which included the sentence “Examples of debts that are not discharged are […] debts for most taxes.” Because one of the two arguments the petitioners want to make is that the debts were discharged in bankruptcy, and because the other argument has already been fixed by the IRS (applying a payment to the correct year) there is nothing left at issue. Summary judgment ensues.

What Happens When the Tax Court Judge Hearing Your Case Retires? Zajac III v. C.I.R., dkt. # 1886-15. (order here)

Judge Chiechi retired effective October 19, 2018 (see press release here). As indicated by the docket number, however, this case has been going on since 2015. The trial took place in early February, 2018 and briefs were submitted in May, 2018. One might ask how much is left to be done in this case (which has a somewhat unusual +100 filings with a pro se party). But the petitioner wants a second-go at the trial. And since the case involves witness credibility determinations the standard it to allow a new trial unless the parties either agree they don’t want to, or (sometimes) if the petitioner fails to ask.

How far will that new trial get the petitioner? If I had to bet, I’d say it is only delaying the inevitable. Why may it be of limited use? Consider the following: 

First, Judge Gale is quick to remind the parties of the “law of the case doctrine.” That doctrine is often raised when a case is on appeal, and stands for the proposition that “when a court decides on a rule of law, that decision should continue to govern the same issues in subsequent stages of the same case.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). As Judge Gale explains, in this context it means that “a successor judge generally should not, in the absence of exceptional circumstances, overrule a ruling or decision of the initial judge.” In other words, whatever Judge Chiechi or other judges in the case have already ruled on, Judge Gale isn’t likely to overturn. And at this point, as I alluded to earlier with the +100 filings on the docket, there have been quite a few rulings. 

Second, one of the legal arguments that the petitioner wants to make (and use a new trial to establish) pretty clearly has no traction. Perhaps unsurprisingly, it is a penalty issue that raises the specter of Graev. The petitioner wants to put the IRS supervisor that approved the penalty on the witness stand. One may wonder why the supervisor’s testimony is necessary, when all that is required is written approval under IRC § 6751(b)(1). Indeed, there has already been some case development on this point: see Raifman v. C.I.R., T.C. Memo. 2018-101, Ray v. C.I.R., T.C. Memo. 2019-36, and Alterman v. C.I.R., T.C. Memo. 2018-83, all of which provide some detail to the general rule that the Tax Court isn’t going to “look behind” a document to the reasoning or motives of the penalty approval by the supervisor. The petitioner in this case apparently wants to show that the IRS agent had a conflict of interest and, consequently, the manager shouldn’t have given supervisory approval. That is a lot like looking at the reasoning and motives of the supervisory approval, and I doubt it would succeed regardless of what the questioning elicits. In truth, if the IRC 6662(a) penalty is so ill-conceived, the taxpayer should have some other pretty obvious defenses apart from procedural infirmities… like reasonable cause or simply not having a substantial understatement (or not acting negligently) in the first place. 

But the petitioner isn’t just casually throwing the “conflict of interest” argument around: he has gone so far as to sue the IRS agent in Federal District Court under a Bivens action. That case was dismissed with prejudice. If I were a government employee that was sued by an individual taxpayer I’d probably be pretty upset too… only it appears that the suits were filed after the penalties were already proposed.

The final reason why I’m not so sure the new trial will get to a different outcome than whatever was already coming: this is a case almost entirely about determining the proper amount of self-employed income and expenses. While testimony (particularly credibility) definitely matters in such cases, the most important evidence is usually documentary. There have already been five submissions of stipulated facts and roughly 80+ exhibits. Those are in the record and aren’t going to be changed. Documents don’t always tell the whole story, and credibility determinations matter when those documents are being explained. But at this point most of the work in this 4 year-old case is, thankfully for Judge Gale, likely done.

A Tale of Two (Types of) Taxpayers: Designated Orders May 20 – 24

I always try to look for a theme running through the disparate designated orders I cover. Sometimes one readily presents itself, as it did the penultimate week of May: broadly speaking, the different ways that well-represented and unrepresented taxpayers use (one may uncharitably say, waste) the Court’s time. The four designated orders of the week give a perfect glimpse into the differing tactics and consequences that well-heeled, fully-lawyered taxpayers face compared to the more common “tax protestors.” We’ll begin with examining the latter.


(Potential) Consequences to Tax Protestor Arguments: Sanctions and Penalties

Procedurally, there isn’t too much novel going on in the two tax protestor cases. Both are collection due process cases where the taxpayer isn’t arguing for a collection alternative, but just repeating tax protestor rhetoric about taxes being illegal or immoral in some sense. 

As usual, the Court has given both parties more than a few opportunities to get things right (Judge Leyden even went so far as to have her case once remanded to Appeals to confirm penalty approval under IRC § 6751). Also as usual, there are some moments of levity in the Court’s recounting of the reasons why the petitioners believe they shouldn’t have to pay taxes. A few of the highlights:

From the Harris v. Commissioner order, a “sovereign citizen” style protestor:

  1. No taxes owed because the IRS is actually a trust domiciled in Puerto Rico
  2. No taxes owed because petitioner “revoked” his “election” to be a U.S. Citizen taxpayer
  3. No taxes because nothing in the Internal Revenue Code applies to “natural persons,” (unlike, presumably, the rest of us fakers).

From the Cotter v. Commissioner order, a “religious duty not to pay tax” style protestor who stopped paying taxes in 2009 (I wonder what led her to believe the government became evil at that point…):

  1. I’ll pay taxes (gifts from “The People” for God’s glory) but I won’t pay “tribute money to extend The Devil’s Kingdom on earth” 
  2. I can’t pay taxes because “I cannot give God’s money for foolish, wicked, wasteful evil practices.”

Ok. So a lot of nonsense from both pro se parties. The Court and the IRS’s time have been sufficiently wasted. And for the petitioners there are consequences to these actions, though the consequences are procedurally distinct. 

For Mrs. Cotter, the consequence is a penalty of $5000 because her reason for requesting the CDP hearing was designated a frivolous position by the IRS under Notice 2008-14. It therefore meets the rules of a “frivolous submission” under IRC § 6702(b)

Mrs. Cotter only owed $348 going into the CDP hearing: she now owes over 14 times that because of the reasons she put forward for not having to pay taxes (even more mind-boggling, since she made a payment of $1,826 with the original return). These are real-life costs for conveniently reading “render unto Caesar” with an addendum of “unless you don’t like Caesar.”

For Mr. Harris, there are no IRC § 6702 penalties because his original CDP request actually specified potentially legitimate reasons for the hearing: in particular, that he never received a notice of deficiency. Rather, it is all of Mr. Harris’s behavior once he is before the Court that leads to a penalty on IRS counsel’s motion under IRC § 6673. Judge Halpern grants the motion and awards a penalty of $15,000. Ouch.

Of course, the Court doesn’t just issue $15,000 penalties to pro se taxpayers for the fun of it. Mr. Harris has been warned numerous times by the Court, resulting in two previous Court decisions (here and here), and is a serial non-filer. The Court has previously found that Mr. Harris has “attempted to turn the IRS and this Court into a mockery for his shopworn tax-protestor rhetoric.” It is unclear why Mr. Harris continues to make these obviously ineffective arguments (he is apparently a West Point graduate, so one may think he would know better) but if it is a hobby, it is fast becoming an expensive one.

Potential Consequences to Hardball Practices: Losing the Court’s Favor: Cross Refined Coal, LLC v. C.I.R., Dkt. # 19502-17

From unrepresented taxpayers we move to very-lucratively represented taxpayers with eight (!!!) attorneys on the case from both Mayer-Brown and Skadden. The Court has only slightly more patience for the positions and use of time by lawyers in this case than that of the unrepresented taxpayers. 

The Cross Refined Coal case actually provided two designated orders the week of May 20th. Both resulted from motions made by the petitioner: a motion for discovery (here) and a motion to strike (here). Both also resulted in, shall we say, stern language from Judge Gustafson almost entirely denying the motions. We will begin with the motion to compel discovery to see why Judge Gustafson was not impressed. 

Usually when I see the Court denying a motion to compel discovery it is because the parties haven’t exhausted informal discovery before asking the court to step in (see Rule70(a)). Here, however, the issue is not with the procedure, but with the contents of the discovery request -I too was a little baffled by what the taxpayer was hoping to get out of the documents.

The case revolves around what I can only imagine to be immensely valuable “refined coal” tax-credits claimed by the taxpayer but disallowed by the IRS for 2011 and 2012. Apart from the aforementioned stature and number of attorneys on this case, one may surmise the dollars at issue based on the amount of IRS attention the issue has received. In 2017, the IRS issued a Technical Advice Memorandum (TAM 201729020) that explained why the IRS was (soon thereafter) going to disallow the credits in a Notice of Final Partnership Administrative Adjustment. A year later, the IRS issued a Chief Counsel Memorandum (CCM AM2018-002) that provided further explanation and analysis for analyzing the rather complex transactions at hand, providing that for other taxpayers (i.e. not Cross Coal) with other different facts, the credits may be allowed. It is the TAM and CCM that is at the heart of this discovery dispute.

Petitioner wants basically everything that the IRS used to reach its conclusions in the CCM and TAM, going so far as proposing to conduct a deposition of an IRS designee concerning the CCM meaning and terms. They also served admissions regarding the conclusions in the TAM and CCM, with questions about “what Congress intended” in enacting the statute at play, IRC § 45(e).

Completely devoid of any understanding of IRC § 45(e), I still couldn’t help but feel like all of the requested information focusing on the genesis and reasoning of the CCM was largely irrelevant to the Tax Court case at hand. Judge Gustafson, apparently, felt that way as well, and describes his consternation this way:

“The court will not adjudicate the correctness of the CCM. […] If the CCM was factually unsupported and legally without merit, that would not help Cross; and if instead the CCM was factually impeccable and legally brilliant, that fact would not help the Commissioner. Consequently, Cross’s efforts in discovery to learn more about the background of the CCM are misdirected.”

Because the taxpayer is represented by such sophisticated counsel, I found myself second-guessing my original impulse that this was obviously a flawed discovery request. I thought something I wasn’t seeing must be going on. What was lurking in the background, it appears, was a simultaneous FOIA dispute. Since the taxpayer is already running into roadblocks with FOIA, wouldn’t it just be more efficient to have the Tax Court fix the issue now, rather than wait for further litigation in the FOIA suit?

Judge Gustafson is not amenable to the proposal of taking work away from other (proper) court venues, and saves his most critical language for the idea: “today we must decline to overlook the palpable irrelevance of the requests at issue and must decline to become, in effect, a proxy for a district court adjudicating a FOIA dispute (in which context relevance is not an issue). We will not use the resources and authority of the Tax Court to compel disclosures extraneous to our proper business.”

And so the motion to compel is not surprisingly denied.

If one feels some frustration from Judge Gustafson at the use of the court (and parties) time in that order, it is amplified in a second order issued two days later on the same docket. This time the order concerns the petitioner’s motion to strike, and this time it is frustration with the uncharitable positions the petitioner is taking.

Again, this circles around discovery. The parties were originally supposed to serve requests for documents no later than January 30, 2019. As some may recall, there was a government shutdown from December 22, 2018 through January 25, 2019. Shortly after the month-long government shutdown hit, but after the January 30 deadline, the IRS requested a continuance of the case and all pretrial deadlines. The Tax Court said, effectively, “how about you two work together to adjust your pretrial schedule, recognizing that it isn’t the IRS’s fault they were locked out of the building?”

But the parties couldn’t come to an agreement: petitioners maintained that document requests made by IRS a few weeks after the shutdown were not timely, and they weren’t budging. This led to some acrimony and motion practice between the parties, with the IRS arguing that petitioners were taking a “hardline” approach and questioning, among other things, their good faith in the process. 

Which brings us to the actual motion to strike. 

Petitioners appeared offended by the IRS’s characterization of the issue, and note that they have always reserved their timeliness objection. Judge Gustafson agrees that the timeliness objection has been reserved, but beyond that asks “is there really any reason to file a motion to strike on those grounds?” In Judge Gustafson’s words, “[w]e think that the pending motion to strike was not a good expenditure of petitioner’s counsel’s time and that it required from the Court attention that would have been better spent on the remaining motions to compel.” 


But if that doesn’t hurt enough, Judge Gustafson also lets drop that a loss on the untimeliness objection is likely coming down the pike. Sometimes the fine line of being a zealous advocate and playing hardball comes with consequences -perhaps, of losing some favor with the Judge. 

Invalidating an IRS Notice: Lessons and What’s to Come from Feigh v. C.I.R.

A few weeks ago, the United States Tax Court decided Feigh v. Commissioner, 152 T.C. No. 15 (2019): a precedential opinion on a novel issue involving the Earned Income Tax Credit (EITC) and its interplay with an IRS Notice (Notice 2014-7). The petitioners in the case just so happened to be represented by my clinic, and the case just so happened to be a A Law Student’s Dream: fully stipulated (no pesky issues of fact), and essentially a single (and novel) legal issue. Because the opinion will affect a large number of taxpayers, I commend those working in low-income tax to read it. What I hope to do in this blog post is give a little inside-baseball on the case and, in keeping with the theme of this blog, tie it in a bit with procedural issues.


Posture of the Case

I frequently sing the praises of Tax Court judges in working with pro se taxpayers. This case provides yet another example. My clinic received a call from the petitioners less than a week before calendar. Apparently, the Tax Court (specifically Judge Goeke) had recognized that this was a novel issue of law and suggested to the low-income, pro se petitioners that they may benefit from contacting a Low-Income Taxpayer Clinic for help with the briefing.

By the time the client contacted me (again, only a few days before calendar) the IRS had moved for the case to be submitted fully stipulated under Rule 122. The Court had not yet ruled on the motion but I mostly found the stipulations unobjectionable (with one minor change, which the IRS graciously did not object to). Rather, what concerned me was the fact that it was designated as an “S-Case.” I wanted this case to be precedential, and I wanted to be able to appeal –neither of which are possible for S-Cases. See IRC § 7463(b). Yes, the Court can remove the designation in its own discretion (see post here), but I didn’t want to leave anything to chance. After consulting with my clients the first order of business was to move to have the S designation removed -which again saw no objection from the IRS. Now the table was set for briefing on the novel issue.

What’s At Issue?

I’m going to try hard not to dwell on the substantive legal issues in this case, important though they are. Nevertheless, an ever-so-brief primer on what was going on is necessary.

Our client (husband and wife) received Medicaid Waiver Payments for the services the wife provided to her disabled (non-foster) child. From conversations with local VITA organizations I already anecdotally knew that some people received these payments, but since taking this case on I have come to appreciate exactly how vast the Medicaid Waiver program is. For our client, the Medicaid Waiver Payments were made in the form of rather meager wages (a little over $7,000) that were subject (rightly or wrongly) to FICA. They were the only wages my clients had. When my clients went to file their income tax return, however, it looked like they were getting a fairly raw deal: namely, missing out on an EITC and Child Tax Credits cumulatively worth almost $4,000. Why? Because in 2014 the IRS decided that these Medicaid Waiver Payments were excluded from income as IRC § 131 “Foster Care” payments.

An exclusion from income sounds to most taxpayers like a good thing: it’s always better to have less taxable income, right? But the tax code is a complicated animal, and for lower-income taxpayers the exclusion of wages was actually a curse: to be considered “earned income” for both the EITC and Child Tax Credit (CTC), wages must be “includible” in income. By the IRS’s logic, this meant that you must exclude your $7,000 Medicaid Waiver Payment (with a tax benefit of $0 in some cases) and couldn’t thereafter “double-benefit” by also getting the EITC/CTC for those excluded wages.

It doesn’t quite seem fair for those who saw little or no tax benefit from the exclusion.

It seems even less fair when you consider that those who would actually phase out of the EITC (say, by receiving a large Medicaid Waiver Payment over $52,000, which has happened) not only would get a larger tax benefit from the exclusion, but could still potentially get the EITC if they had other wages (say, from the other spouse). Theoretically, a couple making $100,000 could get the EITC in this case if the greater portion of the income were Medicaid Waiver Payments. This would be the case because such payments would be disregarded for EITC eligibility calculation altogether. Probably not what Congress (or even the IRS) had in mind.

My clients felt like they should do something about this unfairness. So they did: they took both the exclusion of IRS Notice 2014-7 and the EITC based on the excluded wages. This of course led to a notice of deficiency and culminated in the precedential Feigh decision.

Our Legal Arguments

Because of our client’s novel stance, we had two points we had to make for our client to win: (1) that the wages could be included in income, and (2) basically, that was it. We wanted to make it a simple statutory argument: If the wages could be included, then they were “includible,” and that was all that was required of the EITC under IRC § 32(c)(2)(A)(i).

As to the first point -whether the payments could (maybe, should) be “included” in income- history was on our side. Prior to 2014 courts and the IRS agreed that such payments had to be included in income. Payments for adopted or biological children clearly did not meet the statutory language of excluded “Foster Care Payments” under IRC § 131. The only thing that changed in the intervening years was the IRS issuance of Notice 2014-7: there was no “statutory, regulatory, or judicial authority” that could anchor the change in treatment. As we argued, the IRS essentially transformed “earned income” into “unearned income” on its own. And that sort of change is a massive bridge too far through subregulatory guidance.

We won on that first issue handily. The Court noted that “IRS notices –as mere statements of the Commissioner’s position—lack the force of law.” Then, the Court applied Skidmore deference (see Skidmore v. Swift & Co., 323 U.S. 134 (1944)) to see whether the interpretation set forth by IRS Notice 2014-7 was persuasive.

It was not.

And the IRS could not, through the notice, “remove a statutory benefit provided by Congress” -like, say, eligibility for the EITC. That sort of thing has to be done through statute. For administrative law-hawks, the Tax Court reigning in the IRS’s attempts to rule-make without going through the proper procedures is probably the bigger win. (As an aside, I’m not entirely positive even a full notice-and-comment regulation could do what Notice 2014-7 tries to: I don’t think any amount of deference would allow a reading of IRC § 131 the way Notice 2014-7 does.)

So we cleared the first hurdle: the IRS can’t magically decree that what was once earned income is no more through the issuance of subregulatory guidance. But what of the second hurdle -the fact that our client undeniably did not include the wages in gross income?

Courts have (rightly) treated the terms “allowable” and “allowed” differently, as well as “excludible” vs. “excluded” in previous cases. The breakdown is that the suffix “able” means “capable of” whereas the suffix “ed” means “actually occurred.” See Lenz v. C.I.R., 101 T.C. 260 (1993). Coming into this case I was keenly aware of this distinction because of a law review article I read while writing a chapter on the EITC for Effectively Representing Your Client Before the IRS. Indeed, it was that aspect of the EITC statutory language (and not my familiarity with Notice 2014-7 or Medicaid Waiver Payments) which made me want to take this case from the beginning. I feel compelled to raise the value of that law review article (James Maule, “No Thanks, Uncle Sam, You Can Keep Your Tax Break,”) because so many law professors joke that no one reads law review articles, or that most articles are impractical (no comment on the latter).

Consistently with the distinction of “allowed” vs. “allowable,” the Court has previously ruled on the nuance of “included” vs. “includible.” See Venture Funding, Ltd. v. C.I.R., 110 T.C. No. 19 (1998). “Included” means it was reported as income, “includible” means that it could/should be reported in income. Since the Tax Court already found that we met the first hurdle (our client could include the payments in income and Notice 2014-7 can’t take that away), we were in the clear: it was “includible.”

And so our client has excluded income and the earned income credit derived from it… Impermissible double-benefit, you (and the IRS brief) say?

I disagree. Not only does treating excluded payments as earned income apply the statutory language correctly, and more in line with what Congress would want, I contend that it is the better way to protect the integrity of the EITC. To see why this is you have to look again at how the EITC is calculated, and how the phase-out applies. In so doing we see that the real problem would be in disregarding excluded income altogether.

The Integrity of the EITC

The EITC is means tested, but it calculates the taxpayers means through two separate numbers: (1) “earned income” and (2) “adjusted gross income (AGI).” See IRC § 32(a)(2) and (f).  Excluded income isn’t reflected in AGI, so people with high amounts of excluded income might escape the AGI means testing prong of the EITC -unless the excluded income is specifically caught through other IRC 32 provisions like limits on investment income or foreign income exclusions. (Note that excluded alimony payments post TCJA would not be incorporated in the means testing.)

However, if excluded income like Medicaid waiver payments is considered “earned income” (that is, if we don’t require that earned income be “included”) then people with large amounts of excluded earned income do begin to phase out under the “earned income” means testing prong. In other words, it more appropriately reserves the credit only for those who working and are (truly) of limited means, while denying it to those who (truly) are not. I think Congress would approve. I’d also note that the exclusion is necessarily worth more to higher income earners than to lower-income earners -and frequently worthless to EITC recipients, many of whom may not actually have a tax liability at all (thus providing a $0 benefit to the exclusion).

Finally, I’d note (and did in the brief) that Congress has essentially addressed this problem of excluded earned income before -only with non-taxable Combat Pay. A little history is helpful on that point.

For the majority of the EITC’s existence (from 1978 to 2001), earned income actually didn’t have to be “includible” in gross income. Then, in an effort to make the credit easier to compute (not an effort to limit eligibility), Congress added the includible requirement as part of the Economic Growth and Tax Relief Reconciliation Act of 2001. Mostly, Congress made this change because it wanted information returns to give taxpayers (and the IRS) all the information needed for calculating the EITC.

Unfortunately, this meant that active duty soldiers receiving combat pay (which is a mandatory statutory exclusion, and thus not “includible” under IRC § 112) could not treat that pay as qualifying for the EITC. A GAO report noted that this was likely an unintended consequence (see page 2), that accrued the bulk of the benefits to those that made the most money. The Congressional fix was IRC § 32(c)(2)(B)(vi), which allows taxpayers to “elect” to treat excluded combat pay as earned income (it still isn’t taxed). Congress had to make this change to fix an unintended consequence of their own (statutory) making. However, it would be absurd (we argued) to require Congress to fix an unintended consequence wholly created by the IRS through Notice 2014-7.

What Happens Next?

I’ve been in contact with the local VITA providers in my community that see Medicaid Waiver Payments on the front lines -apparently fairly frequently. Their main question is a practical one: what do we tell taxpayers now? The IRS VITA guidance before had been “you can’t get credit for those payments towards the EITC.” In the aftermath of Feigh, can they both exclude and get credit now (as my client did)?

That is an excellent question, which brings up some excellent procedural issues (finally: I promised I’d get to them). The main issue is whether the IRS may now consider Notice 2014-7 completely moribund, such that there is no exclusion period and the Medicaid Waiver Payments must be included. The Court noted that the IRS did not raise the argument that the payments should be includible in income for my client, so it was conceded. But is the IRS stuck with that position now? Can the IRS take a position that is contrary to its own published guidance? What if that guidance is essentially invalidated?

The best case on point for this sort of situation may be Rauenhorst v. Commissioner, 119 T.C. 157 (2002). In that case, the IRS essentially said it wasn’t bound by its own guidance (in that instance in the form of a Revenue Ruling) when the Commissioner took a litigating position directly contrary to it. After receiving something of a slap-down from the Tax Court, the IRS issued Chief Counsel Notice CC-2003-014 (sorry, I couldn’t find any free links), which provided that “Chief Counsel attorneys may not argue contrary to final guidance.” Final guidance includes “IRB notices” (i.e. notices that are published in the Internal Revenue Bulletin), which Notice 2014-7 was.

Further, it does not appear to matter that Feigh essentially invalidated Notice 2014-7. The Chief Counsel Notice specifically includes a section headed “Case law invalidating or disagreeing with the Service’s published guidance does not alter” the rule that Chief Counsel shouldn’t take a contrary position that is unfriendly to taxpayers. In other words, so long as IRS Counsel follows the CC Notice, they should continue to let taxpayers exclude the Medicaid Waiver Payments… And since they’ve already lost on whether those excluded payments are earned income, it is perhaps best of both worlds for taxpayers moving forwards.

Perhaps. But I’m not sure I’d bet the farm on the IRS following the Chief Counsel’s Notice in all cases (and especially for taxpayers working with IRS agents or appeals, rather than Counsel).

But the final procedural point I want to make takes the long-view of things: which is that this never should have happened in the first place, because the IRS never should have overstepped its powers by issuing Notice 2014-7 masquerading as substantive law without, at the very least, following the rigorous notice and comment procedures required of substantive regulations. Had the IRS done so the tax community could well have seen this before the regulation was finalized and it could have been addressed. This may echo from my soapbox, but Notice 2014-7 undoubtedly caused real harm to some of the most vulnerable taxpayers. I know from conversations in the tax community that many low-income earners lost out on a credit they rightfully deserved. I don’t think for a second that was the intention of the IRS when they issued Notice 2014-7. Nor does Judge Goeke in the opinion (see footnote 7).

But, again, tax is a complicated animal: legislating new rules should not be done lightly. Procedure, in other words, matters.

The Benefits of Tax Court… Designated Orders April 22 – 26, 2019

There are numerous benefits of having your case before the Tax Court, rather than Federal District court. In case books, those benefits are usually distilled to (1) the fact that Tax Court is a pre-payment forum, and (2) the expertise of the Tax Court judges (as opposed to generalists in federal court) in dealing with tax law. At least three of the six designated orders issued during the final week of April 2019 exemplify the latter benefit. The remaining orders, however, demonstrate a third, equally important but often unspoken benefit of Tax Court as a venue for disputes: the patience and experience of Tax Court judges in working with pro se petitioners.

read more…

The Patience (and Boundaries) of the Tax Court. Brown v. C.I.R., Dkt. # 20102-17 (order here)

In some ways, the deeper structural value of our judicial system is simply the feeling that you have a chance to be heard. It may be less about the dollars at issue than the sense that you are being treated unfairly by the IRS -likely on matters that you don’t fully understand. So it is in the above case, where Judge Gustafson goes to great lengths to allow the petitioners their chance to be heard -where others may say that they have already had more than their fair share of that chance.

In this case, the IRS had conceded back in February that there was no deficiency due from the taxpayers… and so moved for an entry of decision to that effect. However, the taxpayers didn’t take “no deficiency” as a (good enough) answer, thereafter (and apparently for the first time) raising the issue that they actually should be due a refund. To get to the bottom of the issue, the Court asked the petitioners for a “succinct statement of the decision that they believe the Court should enter[.]”

Suffice it to say, the taxpayers did not comply with that directive, and instead brought up a lot of extraneous issues and general legal gripes (for example, seeking to bring in the petitioner’s employer as a defendant). This led to an entry of decision confirming that the petitioners didn’t have a deficiency, but also weren’t getting anything else refunded to them.

Petitioners weren’t happy with this, and so filed a motion to vacate, this time sufficiently bringing up the overpayment issue -or at least sufficiently for Judge Gustafson to calendar the motion to be heard in Court. Because the overpayment issue wasn’t properly raised in pleadings, Judge Gustafson even gives a few extra tips to the petitioners on what they’d need to do should they prevail on their motion to vacate -namely, file a motion to amend their petition under Rule 41.

And for what has this intricate, time-consuming, and costly sequence of events revolved around? A potential refund that Judge Gustafson calculates as, at a maximum, $92. Since the dispute only concerns $232 of allegedly over-stated wages, this refund amount would result only if the taxpayers are in the highest marginal bracket (which is doubtful).

But that isn’t the point. The point is that the taxpayers feel wronged and want their day in court to be heard. Kudos to Judge Gustafson in taking that right seriously.

(UPDATE: Judge Gustafson ended up granting the motion to vacate (order here) and both parties eventually agreed to a small “overassessment to be abated” of $65 (see decision here). Still no refund, however, as apparently the petitioner had self-reported a fairly large liability to begin with… Hat-tip to Bob Kamman for following up on this case and sending it my direction.)

Of course, Judge Gustafson’s patience is not boundless, nor should it be. In two other designated orders that don’t warrant great detail (here and here) where the petitioner failed to show up for trial -that is, to exercise their rights- Judge Gustafson had no problem dismissing for lack of prosecution. 

Tax Court Expertise: Showing Your Work on Qualified Dividends. Bara v. C.I.R., Dkt. # 17107-17SL (order here)

Bara involves the somewhat rare Collection Due Process review where the underlying tax is (perhaps) properly at issue under IRC § 6330(c)(2)(B). Or at least the parties act as if the underlying liability is properly at issue – Chief Special Trial Judge Carluzzo hints that it is perhaps an unsettled question. Since the deficiency appears to have been determined by a Math Error notice, and not a Notice of Deficiency, the question would be resolved based on whether the taxpayer had a “prior opportunity to dispute the tax” –which can be a rather murky inquiry. See posts here, here, and here. But rather than upset the apple cart, Special Trial Judge Carluzzo simply says he will “follow the lead” of the parties and treat the liability as if it were properly at issue.

Both parties filed motions for summary judgement on the issue of whether petitioner had properly computed his tax on qualified dividends. Since the material facts were not at issue on that matter, it was ripe for Judge Carluzzo to render a decision… which he does in a tremendous example of statutory analysis.

One would think that calculating the tax on qualified dividends is fairly simple. Generally, we entrust it to our tax software and don’t give it a second thought. But were you to try to figure out solely by reading the statute at issue (IRC § 1(h)), you may be excused if you were left with a headache and confusion. Judge Carluzzo “shows his work” in how to compute the tax under the relevant statute with almost four pages of walkthrough on how the code section works. I won’t repeat it here, but I will commend others to take a look. It is a startling example of how something seemingly so simple (a preferential tax rate) can be so convoluted.

It isn’t clear how the taxpayer made the mistake of treating the qualified dividends as taxed at a zero rate -it appears that he did, in fact, report the dividends on his return, so it wasn’t simply an omission. And unless you are Judge Carluzzo, these calculations are best done by computers -ergo the “math error” treatment by the IRS under IRC § 6213. Kudos to Judge Carluzzo, in any case, for walking through why it should be calculated the way the IRS did, and showing the work we generally entrust software to do for us.

Expertise of the Tax Court, By Necessity. Whistleblower 6388-17W v. C.I.R. (order here)

On other areas of tax law the Tax Court necessarily has more expertise than federal district courts, because they have sole jurisdiction over the subject matter. This includes whistleblower and Collection Due Process cases (the latter could go to District Courts until 2006, but cannot any longer). Like Collection Due Process, the whistleblower statute is still being developed. One issue that has been recently determined is the scope of review of whistleblower actions which, in accordance with Kasper v. C.I.R., 150 T.C. 8 (2018) is limited to the administrative record.

As Judge Guy notes, there is a natural tension in whistleblower cases “between the general rule of protection prescribed in section 6103(a) [e.g. confidentiality of other people’s tax return information] and the parties’ obligations to exchange information in a good-faith effort to arrive at basis for settlement[.]” This tension manifests itself when, as here, the IRS heavily redacts the administrative record (which the whistleblower would rely on) on the grounds that the information is protected under IRC § 6103.

And so, to get clarity on these competing concerns (petitioner’s ability to properly prosecute a whistleblower case and respondent’s imperative to protect certain tax information), Judge Guy essentially orders a summer exam for the parties. Both are to write separate memoranda “providing a comprehensive discussion and analysis of the applicability or nonapplicability (as the case may be) of the provisions of section 6103, and particularly the exceptions prescribed in section 6103(h)(4)(A), (B), and (C), both in the broad context of this whistleblower action and with regard to the specific categories of redacted documents [at issue in the order.]” If that looks like a law-school exam prompt, it gets even better: the parties are expected to “address the plain language of the statute, legislative history, and significant legal precedent in support of their positions.” A happy summer to all…

Expertise on Assessment Issues in Collection Due Process. Jarvis v. C.I.R., Dkt. # 19387-18SL (order here)

I noted above that I find it somewhat rare for a petitioner to successfully or appropriately raise the underlying liability in a Collection Due Process hearing. The order in the Jarvis case is an example of the more common outcome: you had your chance to argue the liability before, and you don’t get a second bite at the apple. In Jarvis, however, it appears that petitioner actually wants a third bite. To wit, the taxpayer had already argued the liability in a previous Tax Court deficiency proceeding (which was dismissed for failure to prosecute when the taxpayer didn’t show up for trial), raised again on a motion to vacate, and raised still another time when the taxpayer appealed to the Second Circuit. The appeal to the Second Circuit, after failing to prosecute the case, begins to seem like a delay tactic on paying… which is not successful because, as Judge Armen points out, an appeal does not stay assessment and collection unless you post bond. See IRC § 7485(a). Since petitioner didn’t post bond (that is, put some skin in the game rather than indefinitely delay the IRS from collecting) AND petitioner has not raised any issues about collection alternatives, the proposed levy is appropriate.

No third bite of the apple for the taxpayer in this case. And no more patience from the Court needed.

Consistency and Other Hobgoblins of the Tax Code: Designated Orders March 25 – 29, 2019

Consistency, Congress, and the Taxpayer. Wheeler & Colerico v. C.I.R., Dkt. # 6104-17S (order here)

This case largely circles around the duty of individual consistency -specifically whether you can be “temporarily away from home” for one tax purpose (IRC 162(a)(2)) while simultaneously being there “on a permanent or indefinite […] as distinguished from temporary basis” for another tax purpose (IRC 217 as interpreted by Schweighardt v. C.I.R., 54 T.C. 1273 (1970)). In this case the taxpayer wants to have their cake and eat it too: yes, I was temporarily away from home, but also my temporary absence established a new permanent place of employment.


The taxpayer needs these two (almost) contradictory facts to be found because he received and treated as non-taxable roughly $70,000 worth of per diem payments for the tax years at issue -payments that could only be tax free if he was temporarily away from home under IRC 162. Meanwhile, he also deducted $22,782 in moving expenses -expenses which can only be deducted if he is moving to a new principal place of work (i.e. no longer away from his tax home) under IRC 217.

Unfortunately for whatever clever arguments the taxpayer came up with, the precedential Schweighardt decision means that the legal outcome is basically a foregone conclusion. That decision addressed the interplay of exactly these same code provisions, and their appearance of inconsistency. As Judge Gustafson writes,

It is this whipsaw that informed the Tax Court’s construction in Schweighardt of the term “new principal place of work” in section 217(a): “[A] place of work is not to be considered a taxpayer’s principal place of work under section 217 if a deduction is allowable for traveling expenses while away from home under section 162.

In other words, you can only have one or the other benefit.

Frankly, that one sentence of Schweigardt should be enough on its own to put this case away (there are other damning facts, including that the work contracts explicitly say they are “temporary” and list his tax home at all times as being in Massachusetts). But there is another inconsistency that I think bears mention, and it is one of Congress’s and not the taxpayer’s making.

Imagine that Mr. Wheeler did not get a per diem while “away from home,” but instead paid for these expenses himself. Recall that, since the 2017 tax reform, unreimbursed employee expenses are no longer allowable itemized deductions. See IRC 67(a), (b) and (g). Accordingly, Mr. Wheeler would not be able to deduct those expenses in 2018 and moving forward. But what if he continued to receive a per diem, rather than deducting expenses he paid? In that instance, he would still get the tax benefit of not treating the per diem (or reimbursement) as taxable income (actually, it is better treatment than miscellaneous itemized deductions under pre-2017 law since it isn’t limited by 2% AGI). Why is this? Because those employer payments are still (probably) excludible under IRC 132(d), which was not repealed. One may question whether this is true, since IRC 132(d) refers to payments where a deduction would be “allowable” under IRC 162 or 167, but from what I can tell it appears to be the IRS’s position that they are still not includible in income (see IRS letter here). Note also that in the context of dependents, where post-2017 law reduces the exemption amount to $0, the deduction is still considered “allowable.” See IRC 151(d)(5) and IRS Notice 2018-70.

All of this is to say, those receiving money from their employer for job expenses get much better tax treatment than those that don’t. The clients I have with substantial unreimbursed employee expenses generally aren’t in a position to negotiate for a per diem, and generally aren’t well paid to begin with. One may question the propriety of this “inconsistency,” since it is likely to end up padding the pockets of people in a better position to pay the tax in the first place (which is generally a consideration of an equitable tax code).

Consistency in Giving Notice to the IRS of a Change in Address. Arnold v. C.I.R., Dkt. # 25750-17S (order here)

I always try to impart upon my students how important proper mailing is, and how frequently it is put at issue in tax cases. Certain statutorily required letters are particularly important to the assessment and collection procedures (e.g. the Notice of Deficiency and Collection Due Process letter). You won’t frequently win on challenges to the validity of the letter based on its content (see Keith’s post here) but you may win based on where it was actually mailed to. Specifically, the letter may be invalid if it was not mailed to the “last known address.”

As Keith detailed in a previous post the Tax Court has recently added some clarity to the last known address issue, in Gregory v. Commissioner. The above order represents a taxpayer casualty from that recent court decision. Because Ms. Arnold filed her Tax Court petition late, the Court must dismiss for lack of jurisdiction because of one of two defects with her “ticket”: (1) the ticket expired (IRS win) or (2) the ticket was invalid (taxpayer wins). Ms. Arnold’s only hope for the latter outcome is if the IRS sent the Notice of Deficiency to the wrong address. The address the letter was actually sent to was her old home, listed on her most recent tax return. Ms. Arnold wanted to argue that the correct address was the one listed on a Form 2848. And for a while, the Tax Court was sympathetic to that argument (see Patrick Thomas’s post here, listing out some of the previous cases where the Court addressed the issue).

Since Gregory is precedential, however, the 2848 change-of-address argument is no longer available – at least in Tax Court. I am unaware of any Circuit courts having ruled on the issue since the Treasury promulgated the regulation, so there may still be the potential for win on appeal.

But what is perhaps more interesting than the foregone legal conclusion in this case comes about from some sleuthing of frequent guest poster Bob Kamman.

Despite finding for the IRS in this order (again, a largely foregone conclusion), Judge Buch begins the order by chastising IRS counsel for filing a previous motion to dismiss that was “riddled with errors,” and failing to correct “some of the very same errors we explicitly noted[.]” Somewhat strangely, the case is being handled by the IRS’s L.A. office despite the trial and hearings being set in Michigan. Even more odd, it appears that IRS Counsel in Detroit would already be familiar with Ms. Arnold: she appears to have filed a case in US Tax Court (with her husband) for tax year 2013 (docket here). Ms. Arnold (assuming it is the same petitioner) filed that petition on 8/12/2016 –before the Notice of Deficiencies were issued in this matter. Again, this is pure conjecture, but one wonders if the address used in Tax Court, and directly with an IRS attorney, would be “clear and concise notice” of a change in address. As Judge Holmes puts it in a previous 2848 case (quoting a Bankruptcy court decision), the IRS “should not ignore what it obviously knows.” Alternatively, one could look at is as another example of the difficulties of providing agency-wide “clear and concise notice” of address change with an entity as vast as the IRS, and why it makes administrative sense for the IRS to want to limit the methods of notice that are valid.

Orders of the Rich and Famous. Ashkouri & Draper v. C.I.R., Dkt. # 17514-15 (order here)

The last order won’t be discussed in detail, since it involves “Graev” issues that have been dealt with extensively elsewhere. However, perhaps more interesting than the legal issues are the petitioners themselves – one in particular who is at least famous enough to have his own Wikipedia page (another hat-tip on that point to Bob Kamman). There isn’t much more I have to say on this case except that in tying in the theme of “consistency” I will note that low-income taxpayers may appear to get the short-end of the stick.

Most of the taxpayers I work with are subject to either Automated Under Reporter (AUR) or Automated Correspondence Exams (ACE). “Live human” (or field/office) exams are generally reserved for wealthier taxpayers (and likely those with a Wikipedia page). The inconsistency is that, under the recent decision of Walquist v. C.I.R., IRC 6662(b)(2) penalties arising from AUR/ACE do not require supervisory approval, whereas those same penalties would if the exam was initiated by a human. See IRC 6751(b)(2)(B). The mind fairly boggles.

Getting to Meaningful Court Review in Collection Due Process Cases: Designated Orders, February 25 – March 1, 2019

There were three designated orders for the final week of February 2019, and all of them concerned Collection Due Process (CDP) cases. Two of the orders (Savanrola Editoriale Inc. here and McDonald here feature the time-honored determination that it is not an abuse of discretion for the IRS to sustain a collection action when the taxpayer refuses to provide financial information or otherwise take any part in CDP hearing. The orders are not particularly novel in that regard, but they do provide a good contrast to the third order where the Court actually finds against the IRS and remands to Appeals.

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Since abuse of discretion is a fairly vague standard, even the easy cases can be useful. Savonrola involves a taxpayer that wanted to challenge the underlying tax liability leading to the notice of federal tax lien (NFTL). However, apart from requesting a CDP hearing (blaming a faulty 1099-Misc for the liability) and then petitioning the court after receiving the determination sustaining the NFTL, it does not appear that the taxpayer engaged in the process much at all. The order does not reference any content from the CDP hearing itself, and it is not clear if the taxpayer engaged in the one that was offered. At the very least, the taxpayer does not appear responsive to the Tax Court once the petition was filed -the case was on the verge of being dismissed for failure to respond to an order to show cause. Because the taxpayer made no showing (and raised no argument) that they should be able to argue the underlying liability under IRC 6330(c)(2)(B) the Court had an easy time disposing of the case.

In McDonald the taxpayer did engage a bit more, but still not enough to give themselves a chance of winning on review. Here, the taxpayer apparently wanted to enter an installment agreement but had been unable to (which can happen to the best of us). However, the taxpayer had a back-year tax return that was “rejected” (that is, not-processed) by the IRS which complicated matters. At the CDP hearing, IRS Appeals was understandably unwilling to set up an installment agreement without that return being properly filed. Appeals also requested a Form 433-A for the installment agreement -the reasonableness of that request depending a bit more on the terms of the installment agreement being proposed. In response, the taxpayer sent an unsigned 2015 return and a Form 433-A lacking supporting documentation. When the signature and supporting documents were not forthcoming after multiple requests, Appeals rejected the installment agreement request and issued a determination sustaining the levy. As can be guessed, based on the failure of filing compliance alone, the Court had very little trouble finding there to be no abuse of discretion.

One can read the frequent, easy cases of Savonrola and McDonald to mean simply that the taxpayer will lose if they don’t comply with IRS requests during CDP hearings. But there is a deeper lesson to be learned: the Court needs something to look at to see how IRS discretion was exercised. By failing to comply or otherwise engage with the IRS during the hearing, you are building a record for review that can only ask one question: was it a reasonable exercise of discretion for the IRS to request the information in the first place? Almost (but importantly not always) the Court will find requests for unfiled tax returns or financial statements are not unreasonable and, by consequence, there was no abuse of discretion for the IRS to sustain the collection action when the requests were not complied with.

The important difference is that taxpayers may succeed even without providing requested information if they have readily engaged in the process. By so doing, they create a record for the Court to review and, possibly, come to a determination that discretion, properly exercised, would not require the information. The most famous of these cases is Vinatieri v. C.I.R.. In Vinatieri, the taxpayer provided a Form 433-A and demonstrated serious financial hardship and medical issues during the CDP hearing, but acknowledged that she had unfiled tax returns. The financial hardship was obvious, as was the fact that it would be exacerbated by levy. The IRS policy (that back year returns must be filed before releasing a levy under IRC 6343(a)(1)(D)) was not so obvious, and blindly following it was an abuse of discretion. Ms. Vinatieri was, it should be remembered, a pro se low-income petitioner with serious health issues. She is the prototypical taxpayer that CDP is meant to protect before disastrous levies take place. Nonetheless, it is not clear she would have prevailed (especially not in a “record-rule” jurisdiction) had she not engaged with the IRS at the hearing.

CDP hearings can also help the more affluent (and represented) taxpayers on non-equitable grounds -and again, engaging is key. Sometimes, a taxpayer may not have to comply with an IRS request for information by adequately showing that the information is unnecessary -for instance, where updated financials are cumulative, because the real issue is a matter of law (See the earlier designated order from McCarthy v. C.I.R., here). When you turn the inquiry into a question of law (not always an easy, or possible task with low-income taxpayers) you change the Court’s rubric. And that is exactly what happens in the third and final designated order of the week

Tax Court to IRS: High School Math Rules Apply. Show Your Work or Face Remand. McCarthy v. C.I.R., Dkt. No. 21940-15L (here)

We’ve blogged briefly about Mr. McCarthy before. The case boils down to whether the petitioner or a trust is the real owner of two pieces of property. If petitioner owns it his collection potential should be upwardly adjusted and the IRS rejection of his Offer in Compromise (or partial pay installment plan) likely constitutes a reasonable exercise of discretion. The issue, then, is mostly legal: does the trust own the property, or is the trust merely the petitioner’s “nominee”?

When the issue before the Court is a question of law, the vagueness of “abuse of discretion” goes largely out the window. It is always an abuse of discretion to erroneously interpret the law at issue (See Swanson v. C.I.R., 121 T.C. 111 at 119 (2003)). McCarthy, however, involves a slightly different lesson: it isn’t necessarily that the IRS erroneously interpreted the law (thereby reaching the wrong determination). It is that the IRS didn’t sufficiently back up the determinations it did reach.

The IRS tried to determine whether the petitioner was the true “beneficial owner” of the properties in the trust by analyzing how the petitioner and trust actually treated the property. The first property at issue (the “Stratford” property) was rented out to a corporation (American Boiler) that was apparently controlled by the petitioner. American Boiler made rental payments to the trust for many years, though in apparently inconsistent amounts.

The IRS believed this string of relationships, peculiar circumstances, as well as the fact that there was no written lease agreement between American Boiler and the trust, adds up to nominee. But the Court sees some gaps between those circumstances and the ultimate conclusion. The Court characterized the argument as “inviting us to speculate that petitioner caused the Trust to use in some fashion for its own benefit the rental income it received from American Boiler.” In other words, the IRS hasn’t adequately shown how they get from point A to point B, and their failure to show their work is fatal. The Tax Court “will not indulge in such speculation.”

The IRS fares no better with the second piece of property (the “Charlestown” property). This time, the IRS inferences seem even more threadbare. The trust (with petitioner as trustee) purchased the Charlestown property. The IRS argues that it was “reasonable for [the Settlement Officer] to have inferred that the funds to purchase the Charlestown property must have come from petitioner.” Unfortunately, there are other beneficiaries (apart from petitioner) of the trust that may have led to other contributions to it, even aside from the aforementioned rental income the trust received. Accordingly, the Court finds no basis for the IRS determination that petitioner was the beneficial owner of the Charlestown property as well.

The point isn’t that the IRS was clearly wrong that the trust was not the nominee of the petitioner (it may very well be his nominee: he hasn’t exactly been a “good actor” in other tax matters –the first footnote of the order mentions his involvement in a criminal tax case).  The point is that the IRS did not do its job in showing how they reasonably came to that conclusion apart from general inferences, which was the issue put before the Court. The taxpayer here may well be the polar opposite of Ms. Vinatieri: represented by counsel, likely affluent (at one time or another), and without the cleanest of hands. But like Vinatieri, (and unlike McDonald or Savonrola) they succeeded by engaging in the process and presenting a question (and record) the Court could reasonably rule in their favor on.