Opinion
2265-19
04-20-2023
CLARK RAYMOND & COMPANY PLLC, D. EDSON CLARK, CPA, PLLC, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
Pending in this case is the computation under Rule 155 following the issuance of our opinion in October 2022. We previously ordered (see Doc. 48) that petitioner's submission would be due May 1, 2023. By order of April 18, 2023 (Doc. 51), we gave particular instructions about petitioner's submission, repeating and elaborating on instructions in the previous order (Doc. 48). Our order included the requirement that
petitioner shall . . . include above his signature a statement to this effect: "I believe that this submission reflects the computation of the amounts to be included in the decision resulting from the opinion of the Court. In this submission I do not take any position different from the Court's opinion. I understand that Rule 155 does not afford an opportunity for requesting reconsideration of the Court's opinion." [Doc. 51 at 3.]
However, at the time we issued that order on April 18, 2023, we did not know that petitioner had already mailed a submission on April 13, 2023 (seventeen days ahead of the due date), which was not entered into the Court's record until April 19, 2023. And, of course, at the time petitioner mailed that early submission, he could not know what we would order 5 days later. Consequently, petitioner's submission does not comply with our order of April 18, 2023.
We are concerned that petitioner's early submission may have failed to comply not only with the requirement in the blocked quotation above but also more generally with our orders and with Rule 155. Petitioner's submission appears to undertake to "take the effect of those agreements [between the IRS and other partners] into account in making allocations of income, loss, deduction or credit" (Doc. 52 at 12)--i.e., allocations not warranted in the Court's opinion. Petitioner seems to say that its computation "only takes into account . . . bona fide allocations of income", id., rather than all the allocations called for in the opinion. Petitioner's submission also appears to expressly disregard the Court's holding (Doc. 25 at 54, emphasis added) that "CRC's 2013 income should be allocated to the withdrawing partners' accounts to bring them up to zero" on the grounds that the opinion stated "should" rather than "must". (See Doc. 52 at 12.) This misconstrues the opinion, which does require that allocation. If petitioner disagrees with that allocation, then Rule 155 is not an opportunity to attempt reconsideration. Petitioner should consider whether and how he should revise his computation as to these issues.
It is therefore
ORDERED that, no later than May 1, 2023, petitioner shall file an amended computation under Rule 155 that does comply with the instructions in our orders of February 28 and April 18, 2023 (Docs. 48 and 51). It is further
ORDERED that, with regular service of this order by mail to petitioner, the Clerk of the Court shall include copies of our orders of February 28 and April 18, 2023 (Docs. 48 and 51).