January 21, 2012

The case went to the United State Tax Court. Brooks Jones, the Assistant to the District Counsel, was assigned to represent the IRS. Jones was a 20 year veteran and had tried nearly a hundred Tax Court cases. His aggressive demeanor and Bronx accent was well known in the Halls of the Court. Roger Jamison represented the family. Jamison was known as brilliant and ruthless. He had was probably the best Tax litigator in the Country and needless to say, the Family could afford the best. Each of the witnesses was paraded in front of the Court. On each one, Brooks Jones, asked them if they saw his entire face. The problem was the witnesses described long relationships with the decedent, and testified as to their knowledge of his gait and his normal appearance. In each case Brooks could not shake their stories. The children testified their story about how their father trekked out on New Year’s Day. Brooks tried tricking them by asking them about December 23 hoping to mess them up, but their stories held. He asked them why they let the old man go out unaccompanied. Marilyn sobbed uncontrollably as if on cue. Daniel choked up when asked the question. Esmerelda testified about the Christmas Day telephone conversation. Brooks asked if it could have been a recording. Esmerelda said, she was no expert, but it was his voice and his words and then she cried about what a nice man he was. Laura testified as the medical examiner that she could not affix a date of death with absolute certainty, but put August 9 on the death certificate as that was the date the body was found and is required by Virginia law, and was the official date of death. She further testified that DNA results confirmed that it was Sidney Frome’s body. Jones cross-examination went into details of the frostbite. But Laura couldn’t lie and told him that there was no way to determine if the frostbite was December frostbite, freezer frostbite, or dead in the snow frostbite. No matter how you slice it, it was not inconsistent with his dying during the snow storm and having his body encased in snow for a couple of weeks. Jamison did not delve into her personal relationship with the Auditor -saving that for another case, another day. The Service called no witnesses.

Six weeks after trial the Service filed its brief with hundreds of citations to cases in which the opinion of the Service was deemed correct because of the presumption of correctness. The law generally gives the IRS a presumption of correctness in its legal findings. The brief further stated that the Court was not bound by Virginia law as to the date of death. That again was merely a presumption and the Court could find differently if the facts supported it. The taxpayer responded that the presumption only applied to legal analysis and not factual findings and that the fact findings rested with the Court and the Service produced nothing that was inconsistent with the date of death believed by the family and the presumptive legal date of death in Virginia. They further argued that the fact that the Service did not put on any witnesses showed this case was brought in bad faith without any scintilla of evidence, merely somebody’s greed.