If you were interested in yesterday’s post concerning the mismanagement over a period of years of the account of Mr. Fagan, please read the comment posted yesterday by Bob Kamman. Bob took the time to call Mr. Fagan and get the kind of background details not possible to find by just reading the opinion. Based on the information from Mr. Fagan, his efforts to fix the problem in TAS, Appeals and Chief Counsel where he was working face to face with a real human were totally unsuccessful. This is the type of case I expected Senator Roth to find in his hearings before the 1998 legislation. These cases exist because sometimes accounts get badly mangled. I did not expect to see Chief Counsel litigating such a case. From the comments it appears that accounts management was not the only place badly managed on this case.
In March, the bankruptcy court for the Southern District of Texas ruled in In re Pendergraft that it had jurisdiction under Bankruptcy Code 505(a) to determine whether Jane Pendergraft qualified for relief from her joint and several liability under IRC 6015(f). The IRS strenuously objected to the bankruptcy court’s decision that it had the power to decide she qualified for innocent spouse relief. It views the Tax Court as the exclusive avenue for obtaining such relief. The case, which maybe the first case to decide this issue – at least the first one to decide the case favorably to the taxpayer, deserves attention because it may open up opportunities for relief in a forum previously unused for this purpose and because the of policy tensions that support the bankruptcy court’s decision even if the language of the statute may not.
read more...Section 505(a) of the bankruptcy code offers taxpayers in bankruptcy the opportunity to contest their tax liabilities in that forum instead of the more traditional forums of Tax Court, district court, or Court of Claims. The reason that Congress granted this power to the bankruptcy court is that sometimes the tax liability needs to be final in order to the bankruptcy case to move forward. The time frame for deciding a tax case in the other forums does not necessarily match the time frame for the bankruptcy case. By giving the bankruptcy court the ability to decide the tax matter, Congress allowed it to control the timing.
The reasoning behind the grant of jurisdiction to the bankruptcy court to hear the tax matter extends to the determination of innocent spouse status; however, the decision of whether someone is an innocent spouse does not turn on whether the tax is due, i.e., the merits of the liability, but rather whether this person claiming innocent spouse status should be relieved of the liability even though it is due. The IRS argues that this distinction precludes the bankruptcy court from deciding the innocent spouse issue because its authority under section 505(a) covers determining the merits of the liability and does not extend to the issue of innocent spouse status even though such a determination would clearly have an important outcome on a taxpayer’s bankruptcy case and whether the debtor could confirm a plan.
The facts of the case are not unusual for an innocent spouse argument. Mrs. Pendergraft, who was 66 at the time of the decision, married Mr. Pendergraft in 1988. During the period of their marriage, they split household responsibilities with Mr. P taking on “exclusive responsibility for the financial activities of the homestead, including the preparation and paying of taxes.” Mrs. P operated a private psychotherapy practice part time and took primary responsibility for child care and household maintenance. For the years 2001-2006, the Pendergrafts failed to file tax returns or to pay the taxes. Mrs. P alleged that she did not know of the failures and signed returns for each year expecting her husband to file them.
She learned of the problem when the IRS levied on her separate bank account in 2008. Although Mr. P initially denied knowledge of the problem he eventually confessed to her he had forgotten to pay the taxes for one year. He later informed her that he had retained attorneys and accountants to fix the IRS problem, that the agreement required they pay the IRS $10,000 a month for an extended period, and that he would make sure all future returns were timely filed. She alleged that he may have misappropriated money she gave to him between 2008 and 2016 to deal with the IRS and that he caused the IRS to mail all correspondence to his office address preventing her from learning of ongoing problems.
In late June 2016, she attended a meeting with their attorney in which she alleges that she learned for the first time that their income and property taxes had not been paid for 15 years and that they faced criminal prosecution. According to her, this attorney advised her that she must join her husband in filing for bankruptcy in order to prevent the IRS from seizing their house and from prosecuting them. I note that if the attorney gave such advice, it incorrectly described the effect of bankruptcy on possible criminal tax prosecution. Bankruptcy code section 362(b)(1), one of the exceptions to the automatic stay, provides that bankruptcy has no impact on criminal prosecution. By October of 2016, she had obtained permission of the bankruptcy court to proceed with divorce and in November she asked the bankruptcy court to determine that she qualified as an innocent spouse. The IRS filed a motion to dismiss the request for an innocent spouse determination arguing ‘that a bankruptcy court’s jurisdiction is limited by the fact that it is a judicial offer of the district court, that the structure of 26 U.S.C. 6015(f) vests the determination of innocent spouse relief strictly in the IRS and tax courts, and that the United States has not consented to being sued on the innocent spouse issue in bankruptcy court.”
The bankruptcy court looked at section 6015(e)(1)(A) which allows a court to grant innocent spouse relief if the IRS fails to make a determination within 6 months. The bankruptcy court pointed to the language of the statute providing that the remedy available in Tax Court for innocent spouse determinations is “[i]n addition to any other remedy provided by law.” Bankruptcy section 505(a) is another “remedy provided by law.” The bankruptcy court looked at applicable 5th Circuit law on the application of section 505(a) which it found supported the court’s ability to make an innocent spouse determination. The court acknowledged the case law cited by the IRS finding bankruptcy court an inappropriate forum for innocent spouse determinations.
The bankruptcy court rejected the authorities provided by the IRS for three reasons: 1) the case law did not address 5th Circuit precedent interpreting 505(a); 2) the plain language of the statute; and 3) a decision by the bankruptcy on this matter would not lead to inconsistent judgments or conflict with basic principles of judicial economy.
Having decided that it can decide the innocent spouse issue, the bankruptcy court then determines that it must wait for the IRS to make a decision. It required Mrs. P to submit to the IRS Form 8857 and indicated that it will make a decision if the IRS fails to do so in six months (not adopting the four-month rule for claims for refund as the shortened time period in 505 cases) or after the IRS makes an adverse decision. It is possible, of course, that the IRS will decide in her favor in the administrative process. If it does not, watch this case as I expect the IRS will not give up this issue at the bankruptcy court level. We looked quickly at the bankruptcy case and did not see any developments yet on this issue.
My first thought was that bankruptcy courts have no business doing innocent spouse cases. But isn’t this a case of the IRS losing the battle but winning the war? Innocent spouse cases are fact-intensive, time-consuming domestic disputes, often with relatively small amounts of probably uncollectible tax involved. The fact of bankruptcy makes it less likely the IRS will ultimately collect. None of the factual determinations required by section 6015 involve tax expertise. With the IRS budgets being slashed, why not let the bankruptcy court wade through the personal as well as financial dregs of what is likely to be a no-win situation for the IRS?
The idea that Congress did not want bankruptcy courts to decide innocent spouse issues — as the DOJ argues — is, to me, ahistorical nonsense. It is unfortunate that the opinion in Pendergraft does not also note that, under the predecessor to 6015, 6013(e), bankruptcy courts regularly decided innocent spouse question. See, e.g., Sanders v. United States, 509 F.2d 162 (5th Cir. 1975); Dakil v. United States, 496 F.2d 431 (10th Cir. 1974).
Legislative history from 1998 re 6015 does not specifically mention bankruptcy courts, but it does express concern that the avenues for innocent spouse relief need to be expanded, not contracted. When the government began arguing that section 6015(e) narrowly applied only to allow the Tax Court to rule on relief (or the district courts to rule on relief if a refund suit was brought), Congress reacted in 2000 by amending 6015(e)(1) to add introductory language making clear that a Tax Court 6015(e) proceeding was in addition to any other remedies provided by law. The Pendergraft opinion notes this language, but fails to quote from the Committee report that adopted this language, which reads as follows:
Non-exclusivity of judicial remedy.—Some have suggested that the IRS Restructuring Act administrative and judicial process for innocent spouse relief was intended to be the exclusive avenue by which relief could be sought. The bill clarifies Congressional intent that the procedures of section 6015(e) were intended to be additional, non-exclusive avenues by which innocent spouse relief could be considered.
H. Rep. 106-1033 at 1023.