STATE OF SOUTH CAROLINA
ADMINSTRATIVE LAW COURT
Anonymous Taxpayer )
(Leldon Oates) )
Petitioner ) Docket No. 06-ALJ-17-0942-CC
Vs. ) MOTION FOR SUMMARY JUDGMENT
South Carolina Department of Revenue )
Petitioner Oates, herby files this Motion for Summery Judgment, based on the following grounds:
- The undisputed fact is DOR has no W-2 forms, 1099’s or wage statements on Oates. At the discovery hearing June 12, the judge noted that the state has not established proof of a tax liability.
DOR has some unconfirmed figures from the IRS that do not qualify as evidence under the rules. The IRS printout is grossly inaccurate, unauthenticated, and blatant hearsay.
- Taxpayer works for construction companies and frequently when an American Citizen leaves a job he is replaced by an illegal immigrant. I have heard that the payroll department then pays the illegal immigrant under the taxpayers name and social security number.
- Oates filed on April 7 his second motion for Production of Documents. DOR responded with their Response to Admissions dated April 26, 2007. Whereby in response to question 4, DOR admitted that it did not have W-2’s or 1099’s from Oates’ employers for that tax year. In response to question 2, the department admits it did not receive a proof of income amounts.
- Oates requests a settlement of this case with waiver of penalties and credit for his per diem at $100 per day for approximately 200 days. Plus 5, 000 miles to the job site at 50 cents a mile and $500 for tools. Also Oates had approximate withholding of $2,726.75. (Request letter for settlement dated May 5, attached.)
- Approximately 50% of petitioner’s gross is eaten up by un-reimbursed business expenses. Under the Cohen case, you can claim a percentage of business expenses and profit for a business enterprise, even if you have no records to substantiate your business expenses. For example, a plumbing subcontractor could claim as expenses 60% of gross receipts from the form 1099s that the IRS received from the contractors.
- 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. (Petitioner, it is clear, has failed to establish a lesser amount.)''
- The purpose of the DOR is to collect taxes, not to brow beat hard working citizens who are unable to keep records because they struggle to make a living and work hard at distant locations. Due to my occupational travels, I am unable to maintain all the records that they seek. However, we all know that I did incur large expenses for out-of-town work. Let us figure out what the law says I owe so I can start paying the taxes that I owe.
- Because DOR was unreasonable in this case, refused numerous requests for settlement, admittedly has no documents against tax victim but refused to settle this case, therefore the tax agency should reimburse Oates for his expenses and time in the amount of $4000. Petitioner also had $500 plane and motel fare plus $15 taxi cab fare to appear at a discovery hearing on June 12. Additionally, taxpayer was laid off because of lost work time due to said court appearance.
- DOR is a bully agency. They take advantage of middle income workers in South Carolina who do not have the economic resources to hire expensive tax professionals. Everybody knows that in almost all of these cases, the amount of money involved is much less than any possible attorney fees.
- In conclusion, Oates requests that this court grant him Summary Judgment plus reimburse costs and fees.
CERTIFICATE OF SERVICE: I do hereby certify on this date that a copy this pleading was sent properly to opposing counsel.
__________________________ Date: June 19, 2007