*1 of restitution. Yancey, Jr.,
James A.
Douglas Gibson, Solicitor, for
75746. KLAUSMAN v. KLAUSMAN. (368 SE2d Judge. Sognier, Henry brought against wife, M. Klausman an action his former portion seeking Patricia W. her contribution of of delin- quent penalties years 1980, 1981, income taxes and and 1982. extinguished The debt to when the IRS the Internal Revenue Service had payments in Mr. tax Klausman’s 1985 estimated granted satisfaction The mo- thereof. trial court Patricia Klausman’s Henry tion for Henry denied that of Klausman. and appeals. Klausman appellant
The who, record reveals that is an accountant while married to established a branch of the Universal Life taxes, Church as a vehicle avoid himself an became ordained Thereafter, minister in said church. tions to the church on the he claimed substantial contribu-
parties’ joint
In
tax returns.
was notified
the IRS that the deductions claimed for contributions
to the
lowed,
Universal Life Church in
would be disal-
imposed,
appel-
and interest would be
protested
proceedings
lant
IRS
decision. Divorce
between the
ties
and became final in March of
incorporated
purported
final decree
all
settle
relating
obligations growing
to the
out
relationship,
marital
and which was otherwise silent as to the delin-
quent
liability.
formally
December
1984 the
disallowed
April
arrearage
deductions;
of 1985 it billed the
penalties totaling
$33,000.
more than
In November of 1985
appellant’s
payments
applied
IRS seized
estimated
them
delinquent
satisfying
taxes,
bill
debt,
thus
brought this
action
contribution.
Appellant
by granting appellee’s
contends the trial court erred
summary judgment
denying
liability
his own
because
he,
the evidence established a
rather than
common
and thus
appellee,
agree.
not
entitled to
as a matter of law. We do
“
relief
properly
as affirmative
can
‘Contribution
discharge
compelled
party
relief
unless the
equally
bound.’
the other
he and
Terpening
supplied.)
v. Mark Smith
(Emphasis
&c.
Nannis
[Cit.]”
Appel
App. 111,
Co., 171 Ga.
Constr.
argues
lant
USCA 6013
*2
(d) (3)
general
hus
that both
as a
§
severally
jointly
on
tax due
liable for
and wife are
band
returns.
limit or remove that
provided
provisions
code
the federal
liability
from an
requirements of
applicant
meets
for such treatment
(e).
provisions.
§ 6013
26 USCA
those
appealed
appellee
the IRS assess-
has
that
It is uncontroverted
requirements
“inno-
her,
meets the
that she
ment as to
through
pursued
that claim
has
treatment,
that she
cent
appropriate
ruling
ruling
sought
Such a
that effect.
to
a
channels and
thereby removing
deficiency,
liability
the tax
remove her
would
well
appellant’s right
no final
date,
To
there
to contribution.
appellee’s
her.
IRS assessment
of the
determination on
However,
appellee’s
found, that
shows,
the trial court
the record
being found an
merit,
her chances of
is not without
claim
“innocent
undisputed that,
un-
It is
are at least reasonable.
experience
appellant,
or ac-
income,
financial
no
like
she had little
question.
prepare
counting
Fur-
returns
matters,
and did
created
the “church”
ther,
involvement with
she had refused
recipient
contri-
charitable
of the disallowed
which was
appellee’s
placed
additionally
that the IRS
butions. We note
“general
sought against appellee.
no
will
continuance,”
notice that
but has issued
hardly
foregoing,
be
it can
In view of the
be
appellee’s
Rather, the time
has been “established.”
said that
is not
yet ripe
adjudicating
us,
as there
the matter before
liability,
appellee
whether
no final determination as to
the
ruling
is correct.
this suit is
trial court’s
that
summary judgment, and a
This case was heard on motions for
ground
that
be
cannot
Ogden
in abatement.
which is a matter
action is
459) (1974).
(208
Equip.
Talmadge Farms,
Co. v.
McMurray,
pursuant
Plaintiff
that he
contends
is entitled to contribution
contribution,
OCGA
23-2-71.
order for a
entitled
§
he must first show
he
and the defendant shared a common liabil
ity. Snyder
Elkan,
891);
Under the rule” of 26 a USCA 6013 may be relieved of returns if tax deficiencies does not know or has no reason to know there substantial *3 understatement of in in judice taxes. Defendant the case sub relies part on the provision. The state has deter- court mined supports that defendant’s evidence innocent claim plaintiff presented no evidence that defendant is not an However, spouse. posture innocent regardless of the of the record state pending the court the resolution of by place appropriate claim defendant will take before the tribunal. Until occurs defendant remains liable for the tax deficiencies at issue. judicata state court held that the doctrine res or estoppel of
by judgment bans plaintiff’s action as a of law. A final matter divorce decree parties binds the in which put all matters or under the rules in might put of law have been until decree issue shall Mize, or reversed set Mize v. 80 441 aside. Ga. Sumner, Sumner upon Ga. Relying 186 390 recitals in the settlement agreement the state court determined that the ties intended to rights resolve all financial between obligations themselves. The agreement parties’ settlement does mention the 1983 tax return. The could responded plaintiff state court also have provided 1981 to do so and 1982 liabilities but failed and that at a the at could been raised minimum tax claim issue have in alternatively the decided in divorce was raised and thereby subsequent the divorce decree claims. barring However, pretermitting any as whether the state court’s issue applica- in correct, its I find error reasoning conclusion the of the settlement judice. At time the sub tion to the facts of audit liability arising from the decree agreement and divorce of obligation 1980,1981 joint the tax returns was of the record face of the Nothing on the parties both under USCA § of a there is some evidence (although changed that this has indicates defendant). complaint Plaintiffs by spouse” claim pending “innocent in rights obligations attempt to alter the does not decree; if and divorce place the at the time of settlement parties at that rights of the the relative anything, plaintiff upon relies oc- rectify events which complaint seeks to Instead time. decree, his when funds following in the divorce curred arising for taxes pre-existing the Clearly the joint returns. the audit of the 1981 and 1982 agreement did the settlement incorporating divorce decree in have and could not determined the 1985 seizure of funds. the the state Therefore, respectfully I would hold that dissent as in granting court erred defendant’s motion Beasley, Judge, dissenting. fully
I concur in the of first, appears 1. At the it suit pendency by filed defendant’s “innocent claim petition in the 1985. If that were United States Tax Court March favor, in her resolved she would not be indebted contribution he seeks. accurately is her defense which is or more
perhaps, absolved inchoate. She has not established that she (d) (3). USC imposed She relieved subsection “[u]nder regulations prescribed by Secretary Treasury], . . .” [of procedure completed. After her which she has commenced but not Appellate case was referred back Division and subse- court, quently trial returned to it was twice scheduled for continued, “generally,” second time March 1987. *4 taxpayer
And there sits. The burden in that case is on prove every exception satisfies element of the (e) (1). C.I.R., 561, in section 6013 Shea v. 780 F2d (6th C.I.R., 220, (1) (4th Cir. Ratana v. 662 F2d Cir. having Not done this the forum for resolu- law tion plaintiff’s gov- of such an claim the court below remains (d) by the joint liability imposed by erned section 6013 (3).
I have authority found no that Mr. party plaintiff below, would have to first ask to be added as a adjudi- in Mrs. Klausman’s Tax Court suit and then seek have it excepted cated to a conclusion that she is not as an “innocent bring agree in order to his claim for contribution. Thus I that the defendant was not entitled to agreed majority’s position,
2. Even if I with the substantive procedural aspect. propriety would have to dissent as to a plaintiff’s denial of is not before us. right wrong appealability, appellant Whether states in respects that, his brief appeal motion, the order “no being appeala- taken as the denial of such a motion is not ble.” At reasons stated Trial Court’s Judgment.” brief, the end of his his “Final Conclusion” is that: “For the appellant urges
above, this Court to review the granting Defendant/Appellee’s Summary Motion for appellant appealed While it is true that from the order which also contained the contained the that is the order which ruling complained beyond of. We not reach properly brought Bandy, Clark v. 546, us. 196 Ga. 17) (1943); Corp., App. Bouldin v. Contran 424) (1985); Bank, Continental Nut Co. v. Savannah (3) (236 18, 31, Fierman, Martin L. Gettle,
Donald W. 75769. DEPARTMENT OF TRANSPORTATION
v. MORRIS et al. Presiding Judge. Deen, September appellant Department On Transportation 4, 1986, (DOT) proceedings against property instituted condemnation by appellee personally owned Carroll Morris. Morris was served with petition September thirty-one days 6, 1986; later, on October untimely appeal. he filed his notice of Pursuant to OCGA (f) published September September 32-3-8 citation was 18, 11 and thirty-five days publication 1986. On October after the by appellees citation, the last notice of was filed Mor- ris’s, Jewelry, Inc. and C & L Inc., Gifts and both of which claimed