Sakkis - Judge Holmes not scared by "scare quotes"

[jcolvin2]

CONSTANTINE SAKKIS,
Petitioner,
v. COMMISSIONER OF INTERNAL REVENUE,
Respondent
Docket No. 20653-03.

ORDER and DECISION

The Court filed its opinion in this case on November 18,
2010, but didn't enter a decision until March 7, 2011 after a
prolonged computational process. Petitioner moved on April 11,
2011 to vacate that decision so that he could file an otherwise
untimely motion for litigation costs. The need to file such a
motion before this Court enters decision may be somewhat unusual
to civil litigators, and there was no evident harm to
respondent, so we granted the motion to vacate and set a
briefing schedule for the motion.

Section 7430 allows the award of litigation costs to a
prevailing party, but only if he first exhausts his
administrative remedies. IRC § 7430 (b) (1). The applicable
regulation generally requires a taxpayer to participate in an
IRS Appeals office conference, or at least file a written
protest and ask for a conference. See 26 CFR § 301.7430-
1(b) (1). Respondent sent a notice of proposed deficiency (i.e.,
a "thirty-day" letter) to Mr. Sakkis on June 27, 2003. Contrary
to what Mr. Sakkis now argues, that letter explicitly referred
to an enclosed publication on "How to Prepare a Protest If You
Don't Agree." The enclosed publication describes the IRS
Appeals process in some detail.

Mr. Sakkis's July 16, 2003 response to this letter (if in
fact he sent it to the IRS -- a point we'll assume in his favor)
was not even a pro se - quality protest. It was, instead a
letter more or less in the form of an interrogatory or document
request filled with tax-protester-style gibberish denying he and
his wife were "taxpayers" or that they had such a thing as a
"taxable year" or that they were "person[s] liable for" any tax
(scare quotes in the original), and giving respondent 30 days to
comply. If the IRS did not, the Sakkises wrote:

your lack of response will establish the
presumption that neither you nor those in
your Service have the documentation to make
or support any presumptions that we are ones
who come within the purview of your
statutory authority whereby you can make any
claim or a requirement or obligation upon
us.

The regulation requires a taxpayer to "participate" in an
Appeals office conference. 26 CFR § 301.7430-1(b) (1) (I). To
"participate" means to disclose "to the Appeals office all
relevant information regarding the party's tax matter to the
extent such information and its relevance were known or should
have been known to the party . . . ." 26 CFR § 301.7430-
1(b) (2). Mr. Sakkis did not do this. His letter cannot even
reasonably be read as a request for a conference.

We will therefore deny his motion, and it is

ORDERED that petitioner's May 31, 2011 motion for
litigation costs is denied. It is also

DECIDED that there is a deficiency in income tax of
$148,498.00; a penalty under IRC § 6662 (a) of $29,699.60; and an
addition to tax under IRC § 6654 (a) of $7,986.92, due from
petitioner for the tax year 2000.
(Signed) Mark V. Holmes
Judge

ENTERED: AUG 25 2011

[Lambkin]

I see a distinct hoof-shaped impression on Mr Sakkis' forehead.

[LPC]

I had to look up the meaning of "scare quotes."

The phrase has been used fairly often in judicial opinions (see for example, Berger v. Xerox Retirement Income Guarantee Plan, 338 F. 3d 755, 758 (7th Cir. 2003), and Pretka v. Kolter City Plaza II, Inc., 608 F. 3d 744, 753 (11th Cir. 2010)), but I think that this is the first time that the phrase has been used in a Tax Court opinion.

[jcolvin2]

I had to look up the meaning of "scare quotes."

The phrase has been used fairly often in judicial opinions (see for example, Berger v. Xerox Retirement Income Guarantee Plan, 338 F. 3d 755, 758 (7th Cir. 2003), and Pretka v. Kolter City Plaza II, Inc., 608 F. 3d 744, 753 (11th Cir. 2010)),but I think that this is the first time that the phrase has been used in a Tax Court opinion.

One small procedural note: The posted document was not techically a "Tax Court opinion," but rather a "designated order" - a new species of order (selected by the judges) posted on the Tax Court website. Despite the high-falutin title, such orders - like other Tax Court orders - cannot be cited as precedent.