US TAX COURT

WASHINGTON DC

Robert Freeman                        ) 
                  Petitioner          ) 
       v.                             )     Docket No. 21xx-10
Commissioner Of Internal Revenue      )    MOTION FOR JUDGMENT
                  Respondent          )    ON THE PLEADINGS
                                      )

PETITIONER MOVES, pursuant to the provisions of Tax Court Rule 120, for a Motion for Judgment on the Pleadings in Petitioner’s favor in this case.

IN SUPPORT THEREOF, Petitioner respectfully states:

  1. The Pleadings in this case were closed in June 2010.

  2. This motion is made at least 30 days after the date that the pleadings in this case were closed and within such time as not to delay the trial. (T.C. Rule 120(a))

  3. The issues in this case are whether there is a deficiency in income tax due by Petitioner and if Petitioner is liable for any penalties and interest related to alleged deficiency.

  4. As admitted in Respondent’s Motion for Continuance of Trial, and according to IRC §7491 Respondent has the burden of proof on these issues.

  5. Petitioner asserts that Respondent has failed to meet his burden of proof according to §7491(C). “Notwithstanding any other provision of this title, the Secretary shall have the burden of production in any court proceeding with respect to the liability of any individual for any penalty, addition to tax, or additional amount imposed by this title.”

  6. The window for Discovery has closed and Respondent has not shown one document to support his theory of income that can be attributed to Petitioner.

  7. According to Scar v. CIR, 814 F.2d 1363, Portillo v. CIR, 932 F.2d 1128, Senter v. CIR, T.C. Memo 1995-311 and Weimerskirch v. CIR, 596 F.2d 358 the IRS bears the burden of proving Petitioner had the stated income.


“Presumption of correctness of government's tax deficiency assessment does not apply when government's assessment falls within narrow but important category of naked assessment without any foundation; court need not give effect to presumption of correctness in case involving unreported income if tax commissioner cannot present some predicate evidence supporting its determination...” Portillo v. CIR, 932 F.2d 1129 (5th CIR. 1991).

“The need for tax collection does not serve to excuse the government, however, from providing some factual foundation for its assessments.” Portillo v. CIR, 932 F.2d 1128 (5th CIR. 1991).

  1. If the IRS intends to use copies of W-2s or 1099s or contracts or invoices, etc., then they must have a witness from the originating source (company/corporation) who can testify to the authenticity of each document and the petitioner can cross-examine. To date, no witness list has been submitted to Petitioner.

  2. According to FRCP rule 26(a)(1)(A) “In General…or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties…”

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

 

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

Respondent has failed to provide “the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that [he] intends to use to support [his] claims or defenses.

Respondent has failed to disclose “a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that [the witness] has in its possession, custody, or control that may be used to support its claims or defenses.” In the instant case, Petitioner has even sought Discovery information ahead of time, beginning in July of 2010.

  1. Respondent sent to Petitioner on November 8, 2011 a set of Stipulations with exhibits. Respondent’s Exhibit B entitled “Source and Location Evidence supporting Exhibit A” does not show a “source” or “evidence”. There are no documents relating to the sources of income to substantiate the IRS’ alleged figures.

  2. What documentation or information has the IRS provided? All Petitioner has from the IRS are names of companies with some astronomical dollar amounts. There are no witnesses or affidavits that Respondent has provided to substantiate these integers.

  3. At this stage, a trial would be a waste of this Honorable Court’s time and would not succeed in efficient use of the Government’s time and resources. It would be in violation of the IRS mission statement, "The purpose of the Internal Revenue Service is to collect the proper amount of tax revenue at the least cost; serve the public by continually improving the quality of our products and services; and perform in a manner warranting the highest degree of public confidence in our integrity, efficiency and fairness."

  4. Petitioner notified Respondent of his intent to file this motion and Respondent does object to the granting of the motion.

WHEREFORE Petitioner asks this court to grant this Motion for Judgment on the Pleadings.

February 3, 2012
___________________________________
Robert Freeman, pro se
123 Main St.
Freedom, SC 12345

CERTIFICATE OF SERVICE: I certify that on this date, I delivered via regular mail in a postage paid envelope, a copy of the foregoing Motion for Judgment on the Pleadings to the following persons at the addresses below:

Department of the Treasury
Internal Revenue Service
Office of Division Counsel
ATTN: James Bamburg
400 West Bay Street, Suite 240
Jacksonville, FL 32202

February 3, 2012
___________________________________
Robert Freeman, pro se
123 Main St.
Freedom, SC 12345