Opinion
545-20
01-20-2022
Belinda G. Austin Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson, Judge
This case is scheduled to be tried at a session of the Tax Court in Winston-Salem, North Carolina, beginning February 7, 2022. The Commissioner filed a pretrial memorandum ("PTM"; Doc. 23) on January 14, 2022, as required by our standing pretrial order (Doc. 21, para. 5(B)); and petitioner Belinda G. Austin has not filed a PTM. We have attempted to reach the parties to schedule a pretrial telephone conference, but so far Ms. Austin has not returned our calls. We will therefore order Ms. Austin to place a telephone call to chambers to schedule a pretrial telephone conference.
We will also order the Commissioner to file a supplemental PTM addressing the subjects described below. The statements in this order do not constitute findings or conclusion but rather current impressions arising from the incomplete information currently before the Court. We invite correction of any errors. The subjects to be addressed are as follows:
Res judicata and section 6015(g)(2)
The Commissioner's discussion of res judicata and section 6015(g)(2) (PTM, pages 5-6) does not refer to Proposed Regulations section 1.6015-1(e), Example 7, and cites but does not distinguish Deihl v. Commissioner, 134 T.C. 156 (2010)--two authorities that, for all we can tell, might most closely resemble petitioner's situation.
Scope of review under section 6015(e)(7)
As the Commissioner's PTM observes (at 9), Section 6015(e)(7) provides that "[a]ny review of a determination made under this section [6015] shall be reviewed de novo by the Tax Court and shall be based upon--(A) the administrative record established at the time of the determination, and (B) any additional newly discovered or previously unavailable evidence." But he contends that, because of the effective date provision of the amendment adding this section, section 6015(e)(7) does not apply to this case. So far, we doubt that this is correct.
Section 1203(b) of the Taxpayer First Act (Act), Pub. L. No. 116-25, sec. 1203, 133 Stat. at 988 (2019), provides that the scope-of-review provision on section 6015(e) (7) "shall apply to petitions or requests filed or pending on or after the date of the enactment of this Act," July 1, 2019. As we construe this provision, see Sutherland v. Commissioner, 155 T.C. ___ (Sept. 8, 2020), this applies to petitions filed on or after July 1, 2019; and Ms. Austin's petition was filed after that date (viz., on January 9, 2020); so the scope-of-review provision of section 6015(e)(7) would seem to apply here.
The Commissioner asserts, however (PTM at 9). that" section 6015(e)(7) does not apply because the IRS did not issue a notice of final determination regarding petitioner's innocent spouse claim before petitioner filed her petition." We infer that this assertion is based on the effective-date provision as it refers to "requests . . . pending". However, what the provision actually states is that the amendment applies to "requests . . . pending on or after" July 1, 2019. Ms. Austin's request was evidently still "pending" after that date, since (as the Commissioner notes) the IRS had not issued a final determination. Consequently, it seems that the scope-of-review provision applies in this case whether we look at Ms. Austin's administrative "request" or at her Tax Court "petition". It would seem that only one of those two disjunctive possibilities would implicate the amended statute, but here both seem to do so. And if section 6015(e)(7) confines our review to the administrative record (plus "newly discovered or previously unavailable evidence"), then this would seem to impose an evidentiary limit not anticipated in the Commissioner's PTM.
The foregoing discussion prompts the following questions:
Do the facts of this case resemble Proposed Regulations section 1.6015-1(e), Example 7?
Does section 6015(e)(7) confine our review to the administrative record (plus "newly discovered or previously unavailable evidence")?
Should the administrative record be filed as such in this case?
If section 6015(e)(7) does apply in this case, does it apply to our review of the 6015(g)(2) "meaningful participation" issue?
Does the administrative record contain evidence about the merits of Ms. Austin's claim, or did the IRS's conclusion about res judicata keep the IRS from collecting information about the merits of the claim?
Does the merits-related evidence described or alluded to in the Commissioner's PTM constitute "newly discovered or previously unavailable evidence", or was it available to the IRS but not sought or considered by it because of its reliance on res judicata?
If the administrative record is insufficient, could remand be appropriate notwithstanding our holding in Friday v. Commissioner, 124 T.C. 220, 222 (2005)? (This is a question we found unnecessary to reach in Sutherland.)
It is
ORDERED that, no later than Monday, January 31, 2022, the Commissioner shall file a supplemental pretrial memorandum addressing the questions set out above. Ms. Austin may file a memorandum if she wishes to do so. It is further
ORDERED that immediately upon receiving this order, and in any event no later than Thursday, January 27, 2022, Ms. Austin shall telephone the Chambers Administrator of the undersigned judge (at 202-521-0850) for the purpose of scheduling a pretrial telephone conference among the parties and the judge.