United States Tax Court Decision for the Week – You be the Judge

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

Wife Who Spent Time Caring for Disabled Son Was Not a Responsible Person for Payroll Tax Purposes

The Tax Court held in Fitzpatrick v. Comm’r, T.C. Memo. 2016-199 that the wife of a silent owner of a restaurant and wine bar was not a responsible person and was not liable for trust fund recovery penalties with respect to unpaid employment taxes. The court noted that the woman spent most of her time taking care of her severely disabled son and her role at the restaurant was ministerial.

In 2004, James Stamps and Edward Fitzpatrick purchased the franchise rights to a wine bar and restaurant in Jacksonville, Florida, called the Grape. They agreed to be equal partners with James being the president and managing partner overseeing the business operations while Edward would be a silent partner and passive investor with some executive authority but no day-to-day duties.

Edward’s wife, Christina, has a high school education had no ownership interest in the business. Her primary responsibility during the years at issue was to serve as caregiver to her disabled son, Evan, who suffers from a rare metabolic disorder called citrullinemia. As a result of the disorder, Evan has severe autism, cerebral palsy, and limited mobility. He is required to take over 50 pills a day and cannot be left for any significant amount of time without adult supervision. Because of the substantial amount of attention Evan required, Christina was unable to devote significant effort to any business enterprise.

James and Edward formed Dey Corp., Inc. Dey Corp. purchased and operated the Grape franchise. James was the only person listed in the articles of incorporation as an officer and director. Shortly after James and Edward began engaging in preliminary business matters, James was unexpectedly hired for a short-term job at a beverage distributor in Puerto Rico. Therefore most of the preopening responsibilities fell upon Edward. Because of his busy schedule, Edward directed Christina to carry out some of those responsibilities. She opened bank accounts and engaged the services of Paychex, a payroll company. One of the services provided by Paychex was the payment of payroll taxes and electronically filing Forms 941, Employer’s Quarterly Federal Tax Return.

The Grape opened in March 2005 and was run primarily by James and a general manager he hired, Kris Chislett. Kris was responsible for carrying out the day-to-day business operations and was Paychex’s main contact during the periods at issue, and he maintained control over the payroll process.

Christina did not have a significant role at the Grape. Her main responsibilities were delivering checks, relaying electronic bank account balances to Kris, and delivering the business’ mail that was sent to her private mailbox. She occasionally transferred funds to and from the corporate bank account at the direction of James or her husband and sometimes issued checks at their direction for some of the business’ recurring monthly expenses. Christina made no operational decisions and did not have the background, education, or training to hold a management position at the Grape. Because no one was usually at Grape on the Tuesday morning the PayChex payroll package was delivered, Paychex started delivering the Grape’s payroll package to Christina and Edward’s home. It was usually necessary for Christina to sign the checks because Tuesday was Kris’s day off and there was no one else onsite available to sign the payroll checks. Christina was not responsible for and did not review statements included in the Paychex package.

Within a year of opening, the Grape was losing money. In 2008, Paychex attempts to withdraw money from the Dey Corp bank account to cover payroll taxes were rejected. Paychex continued to produce payroll checks and reference copies of Forms 941 and debit the funds from the Dey Corp bank account. However, it did not debit the payroll tax portion from the account, make payroll deposits on the business’ behalf, or file Forms 941. Christina was unaware these services had been canceled.

The Grape closed in 2011 and shortly thereafter, an IRS investigator went to the office of Dey Corp.’s CPA to discuss unpaid payroll taxes from the third quarter of 2008 through the closing of the restaurant. The CPA contacted Edward and Christina and notified them of the unpaid payroll taxes. This was the first time the couple had knowledge that federal payroll deposits had not been made for various quarters and that Forms 941 remained unfiled.

After conducting an investigation, an IRS officer recommended assessing trust fund recovery penalties (TFRPs) under Code Sec. 6672 against James, Kris, and Christina. Both James and Kris successfully administratively contested the assessments. James filed a request for abatement which was granted and Kris was granted relief by the IRS Office of Appeals. Christina challenged the liabilities during her CDP hearing but the IRS found her to be liable for the penalties which added up to over $150,000. Christina then took her case to the Tax Court.

Before the Tax Court, the IRS argued that Christina exercised substantial financial control over Dey Corp. and that at all times was a de facto officer of the corporation because she opened two corporate bank accounts, had signatory authority on both accounts, and signed checks on behalf of the corporation.

Christina argued that she lacked decision-making authority and did not exercise significant control over corporate affairs. She further asserted that despite her signatory authority, she was not a responsible person within the meaning of Code Sec. 6672 because she had a limited role in the business’ payroll process and merely signed payroll checks for the convenience of the corporation. According to Christina, James and Kris were responsible for running the corporation day to day and her duties were ministerial.

The Tax Court held that Christina was not a responsible person and thus was not liable for the TFRPs assessed against her. The court began by noting that liability for a TFRP is imposed only on (1) a responsible person who (2) willfully fails to collect, account for, or pay over the withheld tax. The court also commented on the credibility of the nine witnesses called to testify. The court found Christina and Edward, as well as a couple other witnesses to be credible. However, the court did not find the testimony of James, Kris, and another individual to be credible. The court also had little confidence in any of the documents the IRS obtained from Kris. The court found that the preponderance of the evidence showed that Christina’s role was ministerial and that she lacked decision-making authority.

The court also noted that Christina spent most of her time taking care of her disabled son and, that as a result of having to constantly lift Evan, she developed spinal stenosis which required periodic injections and epidurals. Consequently, she usually visited the corporation only once a week, on Tuesdays, for less than an hour each time.

Finally, the court said it was puzzled by the fact that James, the president of the corporation and a hands-on owner, and Kris, the day to-day manager, successfully evaded in the administrative phase any personal liability for the TFRPs.

United States Tax Court Decision for the Week – You be the Judge

The United States Tax Court Upholds Notice of Federal Tax Lien Filing

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

The United States Tax Court held that the IRS Appeals Office didn’t abuse its discretion in determining to sustain a notice of federal tax lien filing against an individual, finding that Petitioner couldn’t challenge most of his underlying tax liabilities, he didn’t properly raise other issues during his hearing, and he didn’t show that overpayments of tax weren’t properly applied.

WALTER THORWALD SKALLERUP 3RD,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

T.C. Memo. 2015-48

United States Tax Court Decision for the Week – You be the Judge

No IRS Abuse of Discretion when Installment Agreement Does Not  Preclude Notice of Federal Tax Lien Filing

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

The United States Tax Court, in a summary opinion, held that the IRS did not abuse its discretion in a determination sustaining a notice of federal tax lien filing against a couple who had an installment agreement, but who had defaulted on prior agreements; the court also held that equitable estoppel should not be applied against the IRS to stop the lien filing.

KENNETH JOHN MELIKIAN AND SHARON KAYE MELIKIAN,
Petitioners
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

T.C. Summ. Op. 2014-114

United States Tax Court Decision for the Week – You be the Judge

IRS Abuse of Discretion by Sustaining Levy; Case Remanded to Appeals for a Supplemental  Hearing

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

The United States Tax Court held that the IRS Appeals Office abused its discretion by sustaining a levy when a sculptor refused to enter an installment agreement conditioned on the filing of a notice of tax lien, finding that the appeals officer didn’t balance the need for efficient collection against concern that the collection action be no more intrusive than necessary. The court remanded the case to the IRS Appeals Office for a supplemental collection due process hearing.

JAMES B. BUDISH,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

T.C. Memo. 2014-239

United States Tax Court Decision for the Week – You be the Judge

The United States Tax Court Upholds Deficiency, Notice of Federal Tax Lien and No IRS Abuse of Discretion Found

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

The United States Tax Court, in a summary opinion, affirmed an assessment of income tax deficiency and sustained a notice of federal tax lien because the Tax Court found no abuse of discretion by the IRS, noting that the taxpayer had a prior opportunity to contest his tax liability but neglected to do so.

BRIAN CRAIG JOHNSON,

Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

T.C. Summ. Op. 2014-90

United States Tax Court Decision for the Week – You be the Judge

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

The United States Tax Court held that a settlement officer didn’t abuse her discretion by making a determination to sustain IRS lien and levy actions against a couple for unpaid tax liabilities, finding that the couple, who didn’t respond to the IRS’s motion for summary judgment, failed to show the existence of any material facts in dispute.

ROBERT TRIOLA AND NANCY V. TRIOLA,
Petitioners
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

T.C. Memo. 2014-166

 

 

United States Tax Court Decision for the Week – You be the Judge

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

The United States Tax Court held that an individual was liable for frivolous return penalties for filing a zero return and sustained the IRS’s determination to proceed with collection action against him, finding no abuse of discretion by the IRS; the court declined to impose a frivolous argument penalty, finding that some of his arguments weren’t frivolous.

JOHN LEWIS HILL,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

T.C. Memo. 2014-134

 

United States Tax Court Decision for the Week – You be the Judge

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

The Tax Court held that an individual couldn’t challenge his underlying tax liability under Internal Revenue Code Section 6330(c)(2)(B)based on his failure to receive a notice of deficiency, finding that he declined to check his mail and retrieve the notice that the IRS attempted to send him by certified mail.

The IRS sent Eric Onyango a notice of deficiency for tax years 2006 and 2007 by certified mail to his legal address. The U.S. Postal Service attempted to deliver the notice and left notifications of its attempted delivery. However, Onyango admittedly failed to check his mail at that address even though he was there 30 to 40 percent of the time. Therefore, he didn’t receive the notice of deficiency, and it was returned to the IRS. The IRS eventually made determinations to proceed with collection actions against Onyango for his unpaid taxes, and he petitioned the Tax Court, claiming that he was entitled to challenge his underlying tax liability for tax year 2006 under section 6330(c)(2)(B) because he didn’t receive a notice of deficiency.

The United States Tax Court, in an opinion by Judge Carolyn P. Chiechi, held that Onyango wasn’t entitled to challenge the liability. The court found that although he was at the address at least some of the time during the period when the post office attempted delivery, he declined to check his mail. The court further found that he failed to do so even though he knew that the IRS was considering adjustments to his taxes and had communicated that it would send him a notice of deficiency. Chiechi concluded, “We hold that petitioner may not decline to retrieve his Postal Service mail, when he was reasonably able and had multiple opportunities to do so, and thereafter successfully contend that he did not receive for purposes of section 6330(c)(2)(B) the 2006-2007 notice of deficiency.”

ERIC ONYANGO, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

142 T.C. No. 24

United States Tax Court Decision for the Week – You be the Judge

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

The United States Tax Court held that the IRS didn’t abuse its discretion by sustaining a notice of federal tax lien filing against a couple, but it did abuse its discretion by failing to request financial information from the couple to consider collection alternatives; the court remanded the case to the Appeals Office to consider their request for an installment plan.

JOSE L. URIBE AND MARIA E. URIBE,
Petitioners
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

T.C. Memo. 2014-116

United States Tax Court Decision for the Week – You be the Judge

A recent Tax Court decision was reported that may be of interest to individuals potentially dealing with tax litigation. J. Frank Best, Certified Public Accountant and United States Tax Court Practitioner, works to stay current on all IRS decisions concerning tax litigation to ensure we are fully informed and prepared for our clients.

The United States Tax Court sustained deficiencies and additions to tax for failure to file returns and pay taxes against an individual, holding him in default for failing to comply with court rules and failing to appear; the court imposed a $25,000 penalty against him for presenting frivolous tax-protester arguments and initiating groundless proceedings.

PETER H. JONES,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent


PETER HENRY JONES,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

T.C. Memo. 2014-101