Opinion
11680-20L
04-16-2024
JOSEPH SAFDIEH, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Mark V. Holmes Judge.
This case was originally on the Court's May 24, 2021 trial calendar for New York City. It arises from a notice of determination sustaining the filing of a federal tax lien to collect penalties assessed under IRC § 6038 for tax years 2005- 2009. Respondent moved for summary judgment, but the question of the assessability of section 6038 penalties was bubbling up in other cases as well. In Farhy v. Commissioner, no. 10647-21L, 160 T.C. No. 6, slip op. at 7 (Apr. 3, 2023) we finally held that those penalties are not assessable, but likely recoverable only in a civil action. Id., 160 T.C., slip op. at 7-8. Our decision in Farhy is still pending on appeal to the D.C. Circuit. See Farhy v. Commissioner, No. 23-1179 (D.C. Cir. filed July 24, 2023).
Last week we declined to overrule Farhy in a case appealable to the Eighth Circuit, even though the D.C. Circuit has not yet spoken on the issue. Muhki v. Commissioner, no. 4239-22L, 162 T.C. No. 8, slip Op. At 18 (Apr. 8, 2024). Our citation to Golsen v. Commissioner, 54 T.C. 742, 747 (1970), aff'd, 445 F.2d 985 (10th Cir. 1971) means that we will not wait on the appeal in Farhy any longer for cases appealable other than to the D.C. Circuit.
Mr. Safdieh was a New York resident when he filed his petition, so appellate venue presumptively lies in the Second Circuit. He is representing himself, and we infer from the fact that his filings are mostly handwritten that he is not the most sophisticated of litigants in Tax Court. In his response to the IRS's motion he did not include his own motion for summary judgment, and he did not raise the argument that ultimately prevailed in Farhy and Mukhi.
We have nevertheless held that we can grant summary judgment against the Commissioner even when he is the only party moving for summary judgment. See Rogers v. Commissioner, 157 T.C. 20 (2021) (Court, in rejecting respondent's lone summary judgment motion, held that respondent abused his discretion rather than remand or try issue). We have also held that it is the obligation of the appeals officer conducting a CDP hearing to verify "that the requirements of any applicable law or administrative procedure have been met." I.R.C. §§ 6320(c), 6330(c)(1). See Freije v. Commissioner, 126 T.C. 14, 32-37 (2005) (finding an appeals officer's verification was insufficient due to an error of law). This would appear to be a legal impossibility in this case now that we've twice held that the Code does not permit the assessment of section 6038 penalties.
Nevertheless, our Rule 121(g) requires that we give respondent notice and an opportunity to point out any difference between this case, and Farhy and Mukhi. If not, we will enter decision in Mr. Safdieh's favor -- though we will note that we regard any arguments in those two cases as having been made in this one as well.
Therefore, it is
ORDERED that on or before May 15, 2024 respondent file a response to this order.