Opinion
16245-22L
04-07-2023
IE & J CO. CMD, LLC, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
This is a "collection due process" ("CDP") case brought under 26 U.S.C. § 6330(d)(1), in which the petition seeks our review of a "Notice of Determination" that was issued by the Independent Office of Appeals of the Internal Revenue Service ("IRS Appeals") and that sustained a proposed levy to collect penalties under I.R.C. section 6721 (for "Failure to file correct information returns") for the years 2015 and 2016. The case was set for trial at the Tax Court's trial session in Washington, D.C., beginning May 8, 2023. The Commissioner filed a motion (Doc. 11) for summary judgment. In response, petitioner filed its own cross-motion (Doc. 15). The Commissioner has filed a motion for continuance (Doc. 16) asking us to strike the case from the calendar of the upcoming trial session, in order to permit consideration of the cross-motions. The Commissioner's motion for continuance is not unreasonable; but we will not grant a continuance but will instead order a further submission from petition on its cross-motion for summary judgment; and will order that the cross-motions shall be heard at the trial session beginning May 8, 2022.
Petitioner's motion attempts to challenge the underlying liability (i.e., the section 6721 penalties for 2015). We have not yet ruled whether such a challenge is permissible in this case. Petitioner's motion alleges that
all of tax statements were previously filed with the IRS but due to entity classification change from Corporation to LLC and the assignment of a new employer identification number may have been transposed on the missing tax statements. Also, the taxpayer stated that it would not be able to provide
duplicate copies because of the partial water damage to the office and warehouse facility which occurred during the filing of hearing request notices between (1) the date of Taxpayer's request for a hearing, and (2) date that the Appeals officer made a final determination.
However, the motion provides no details about the "tax statements [that were] previously filed". It is therefore
ORDERED that our previous order of March 9, 2023 (Doc. 14) is vacated to the extent that it requires the Commissioner to file a reply by April 14, 2023. It is further
ORDERED that, no later than Friday, April 28, 2023, petitioner shall file a supplement to his motion, in which it shall
(1) identify with particularity the "Corporation" to which the motion refers, including: (a) the name or names under which it made (or, if it is uncertain, may have made) filings of the alleged "tax statements"; (b) the address or addresses that the "Corporation" gave or may have given in filing those "tax statements"; and (c) the employer identification number or numbers under which it made (or may have made) filings of the alleged "tax statements";
(2) identify with particularity the "LLC" to which the motion refers, including: (a) the name or names under which it made (or, if it is uncertain, may have made) filings of the alleged "tax statements";
(b) the address or addresses that the "LLC" gave or may have given in filing those "tax statements"; and (c) the employer identification number or numbers under which the "LLC" made (or may have made, whether correctly or by transposition or other error) filings of the alleged "tax statements";
(3) describe with particularity the "tax statements" to which the motion refers, including the tax form and the names and taxpayer identification numbers of each payee for each tax period;
(4) describe and give the date of the event that caused "partial water damage to the office and warehouse facility", and submit any documentation of that event (including, for example, insurance claims); and
(5) submit copies of any "tax statements" (or portions thereof) that survived the "partial water damage" referred to in the motion.
Petitioner is advised that time is of the essence in complying with this order. We do not expect to grant any extension of time for this submission. It is further
ORDERED that, the Court will hear argument on the cross-motions for summary judgment at or soon after the calendar call of the Court's upcoming session beginning May 8, 2023. The parties should arrive before 10:00 a.m. and should go to the front of the courtroom and report their presence to the trial clerk stationed there. Petitioner would be well advised to arrive no later than 9:30 a.m. in order to consult with the volunteers from the Lower Income Tax Clinic who will be present to advise and consult with self-represented taxpayers. Petitioner should understand that the Court is scheduling this hearing on the motions in order to make available to petitioner this helpful resource. It is further
ORDERED that the Chambers Administrator of the judge signing this order shall promptly telephone petitioner at its telephone number on record with the Court and shall obtain from petitioner an email address to which she shall transmit a copy of this order.