Friday, June 17, 2016

The Tax Court Sticks to Its Allen Holding that the Taxpayer's Fraud is not Required for § 6501(c)(1)'s Unlimited Statute of Limitations (6/17/16; 6/20/16)

I have previously blogged on the issue of whether the unlimited statute of limitations for fraud in § 6501(c)(1), here, requires the taxpayer's personal fraud or, on the other hand, merely a fraudulent position as a result of someone else's fraud (such as a return preparer).  The issue rose to prominence after the Tax Court's decision in Allen v. Commissioner, 128 T.C. 37, 40 (2007) which held that the taxpayer's personal fraud was not required; all that was required, according to Allen, was fraud on the return without regard to the taxpayer's personal culpability.  The Second Circuit seemed to agree in City Wide Transit, Inc. v. Commissioner, 709 F.3d 102 (2d Cir. 2013).  But, the Court of Appeals for the Federal Circuit did not agree (at least two of three judges on the panel did not agree).  BASR P'ship v. United States, 795 F.3d 1338 (Fed. Cir. 2015).  The Government did not seek rehearing or certiorari in BASR, so that matter seemed to be practically resolved because taxpayers could choose to litigate the issue in the Court of Federal Claims (governed by its Court of Appeals, the Court of Appeals for the Federal Circuit).

But, there will be cases with the issue that are not litigated in the Court of Federal Claims.  One just was.  Finnegan v. Commissioner, T.C. Memo. 2016. 118, here.  There, the return preparer fraudulently prepared the return.  Allen of course was the governing authority in the Tax Court, so the Tax Court was bound to follow Allen unless it chose to reconsider Allen.  It chose not to.  The relevant portion of the opinion is short, so I quote it in full (Slip Op. pp. 17-18):
OPINION 
We must decide whether respondent has proved that petitioners’ returns were prepared falsely or fraudulently with the intent to evade tax.
I. Limitations Period 
We begin with an analysis of the limitations period for assessment of income tax. The Commissioner generally must assess any income tax within the three-year period after a taxpayer files his or her return. Sec. 6501(a). In the case of a false or fraudulent return with the intent to evade tax, however, tax determined to be due may be assessed at any time. Sec. 6501(c)(1). In Allen v. Commissioner, 128 T.C. at 42, we held that section 6501(c)(1) applies even if it is the preparer of the return, and not the taxpayer, who falsely or fraudulently  prepared the return with the intent to evade tax. But see BASR P’ship v. United States, 113 Fed. Cl. 181 (2013), aff’d, 795 F.3d 1338 Fed. Cir. (2015). n6
   n6 We see no reason to revisit Allen v. Commissioner, 128 T.C. 37 (2007), on account of BASR P’ship v. United States, 113 Fed. Cl. 181 (2013), aff’d, 795 F.3d 1338 (Fed. Cir. 2015). In the Court of Appeals for the Federal Circuit’s opinion, a persuasive dissent was filed, as well as a concurring opinion that relied on sec. 6229, a provision inapplicable in the instant case. Accordingly, even in cases appealable in the Federal Circuit, it is unclear whether, in the absence of the application of sec. 6229, which interpretation of sec. 6501(c)(1) would prevail. Moreover, there is no jurisdiction for appeal of any decision of the Tax Court to the Court of Appeals for the Federal Circuit. Sec. 7482(a)(1). Additionally, the parties have not cited BASR P’ship and do not contend we should revisit Allen. Thus, Allen is controlling precedent in the instant case, and we do not revisit the analysis and conclusion in that Opinion.
This is a cautionary tale.  First, practitioners must help their clients in forum choices.  Where this issue is presented, the best forum choice is the Court of Federal Claims which, under Flora, requires full pre-payment of some amount, perhaps the full tax in issue.  Second, taxpayers going to the Tax Court either by petition for redetermination of a deficiency or in a CDP hearing where liability can be contested (not all CDP cases if an opportunity to contest was previously available) will not fare well. Third, since sporadic litigation will continue in forums other than the Court of Federal Claims (particularly the Tax Court), it would appear that this issue will bubble up to other Circuits and, unless the IRS gives up the issue, a conflict may develop that might cause the Supreme Court to grant certiorari.  The Finnegan case is appealable to the Eleventh Circuit which has not yet addressed the issue.  My sense is that the Eleventh Circuit will be a taxpayer-friendly venue on this issue.  Still, the Eleventh Circuit could create a conflict with the Court of Appeals for the Federal Circuit..

Finally, just a coincidence having nothing to do with the merits, Allen was decided by Judge Kroupa, who resigned from the Tax Court and was recently indicted.  See Former US Tax Court Judge Kroupa Indicted (Federal Tax Crimes Blog 4/4/16; 4/5/16), here.

Les Book has an excellent discussion of Finnegan at Tax Court Sticks to Its Guns and Holds Fraud of Preparer Can Indefinitely Extend Taxpayer’s SOL on Assessment (Procedurally Taxing Blog 6/20/16), here.

JAT Correction: An earlier version of this blog entry indicated that the Finnegans lived within the Second Circuit which would make City Wide an influential, if not controlling, authority on appeal.  Actually, at the time of filing the petition, they lived in the Eleventh Circuit which has yet to speak on this issue.

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