Trial Calendar: Columbia, SC
Date: March 1, 2010
PRETRIAL MEMORANDUM FOR Philip J.
NAME OF CASE: DOCKET NO.: 168xxx
Philip J.
Petitioner
v.
Commissioner of Internal Revenue
Respondent
ATTORNEYS: Petitioner: pro se Respondent: District Counsel Tel. No.: No Phone Tel. No.: 336-378-2110
AMOUNTS IN DISPUTE: Year(s)/Period(s) Deficiencies/Liabilities Additions/Penalties Tax Year Ended 2005 $35,074.00 plus interest and penalties.
STATUS OF CASE: Probable Settlement __X___ Probable Trial _____ Definite Trial _
CURRENT ESTIMATE OF TRIAL TIME: One hour
MOTIONS YOU EXPECT TO MAKE:
Motion for Production of Documents
Motion in Opposition to Summary Judgment
Motion in Opposition to Penalties
Motion for Admission of Facts
Motion for Stipulations of Facts
Motion to shift Burden of Proof
Possibly some others.
STATUS OF STIPULATION OF FACTS: Completed _____ In Process __X_
ISSUES:
1. Hearsay by CIR
2. Lack of Authentication by CIR and ROE issues.
3. Abatement of Penalties
4. Cohen Case
5. Weimerskirch Case
6.Issues listed on Petition
WITNESS(ES) YOU EXPECT TO CALL: None at this time
SUMMARY OF FACTS: (Attach separate pages, if necessary, to inform Court of facts in chronological narrative form)
Petitioner has deductions, dependents, un-reimbursed business expenses, credits, deductions for tax return preparation expenses, telephone tax credit, church donations , etc.
Petitioner is entitled to $50 refund of illegal telephone tax and Petitioner requests waiver of penalties.
Petitioner never received 40% of income, went to contract labor.
The income figures used by the CIR may have come from illegal immigrants using petitioner's Social Security number.
BRIEF SYNOPSIS OF LEGAL AUTHORITIES: (Attach separate pages, if necessary, to discuss fully your legal position)
Reconstitution of Records
The Cohen case shows that Petitioner can use reasonable figures, instead of figures that cannot be correct. Petitioner can also reconstruct lost paperwork to substantiate his deductions and business expenses.
The 9th Circuit Court ruled in Cohen v. CIR, 266 F.2d 5; 1959:
“We think our only proper course is to approach the problem indirectly by analysis of the record in the light of the principles established in Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930). Our objective will be, after resolving any reasonable doubts against petitioner, to reconstruct his gross income as betting commissioner at a figure which in our judgment it would be unlikely to exceed in fact.”
More to be submitted later
EVIDENTIARY PROBLEMS:
Petitioner has Affidavit of reconstructed deductions and expenses.
CERTIFICATE OF SERVICE: I hereby certify that on or about this date, I mailed properly a copy of this pleading to the Respondent at his or her proper mail addresses.
___________________________________ Oct 5, 2009 Philip J., Pro se, Petitioner
ATTACHMENT: To Pretrial Memorandum
SUMMARY OF FACTS:
Re: Philip J. Vs Cir Docket # 168xxx
1. Petitioner operated a small body Shop in 2005; in which only stayed in business on or about 18 mouths.
2. Most small business take two to five years to start showing a profit.
3. Petitioner had unreimbursed business cost/. Expenditures of $116, 9700 or more.
4. Petitioner had a dependant wife for the year in question.
5. Petitioner is entitled to credit for excessive telephone tax.
6. Petitioner is entitled to waiver of penalties.
7. District Counsel has no certified or authenticated wage statements from employers.
8. The income figures from the IRS include monies earned by illegal aliens using petitioners social security number.
9. Petitioner had deductions for medical expenses, tax preparation expense, charitable donations, church donations, etc.
10. Petitioner subcontracted 40% of his labor compensation out.
11. Petitioner ( in running a body shop ) had office expense, shipping expense, parts, outside services, Sublet repairs, Electricity bills, Heating, Auto expense, towing, Shop supplies, paint and materials, Equipment repairs, etc.
12. Taxpayer is entitled to claim cost of doing business against the gross receipts for his business listed on the Notice of Deficiency.
13. Taxpayer is a auto body technician and is entitled to claim 75% of the gross income listed on the 90 day letter, resulting in a 25% net for 2005.
14. Self employed auto body technicians in taxpayers area earn 25% net from gross income.
15. The IRS has no original source documents from Petitioner’s employer.
16. The IRS does not have authenticated documents showing income to Taxpayer.
CERTIFICATE OF SERVICE: I hereby certify that on or about this date, I mailed properly a copy of this pleading to the Respondent at his or her proper mail addresses.
________________________ Oct 5, 2009 Philip J., Pro se