687 F2d 164 Hillman v. Commissioner of Internal Revenue

687 F.2d 164

82-2 USTC P 9595

James R. HILLMAN and Donna J. Hillman, Petitioners-Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 81-1293.

United States Court of Appeals,
Sixth Circuit.

Sept. 1, 1982.

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1

James R. Hillman, Donna J. Hillman, pro se.

2

Emory L. Langdon, Jerome Sebastian, Acting Chief Counsel, Internal Revenue Service, John F. Murray, Michael L. Paup, Richard Farber, Stephen Gray, Tax Div., Dept. of Justice, Washington, D. C., for respondent-appellee.

3

Before MARTIN, Circuit Judge, BROWN, Senior Circuit Judge, and HOLSCHUH, District Judge.*

ORDER

4

Petitioners appeal the decision of the Tax Court which determined a deficiency in their federal income tax for the years 1973 and 1974. This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the briefs, record and appendix, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

5

Petitioners are part of a large number of individuals who purchased a mass-marketed kit and forms from the Educational Scientific Publishers in order to create a family trust. They attempted to assign their real and personal property to the trust as well as lifetime use of their employment services. They also tried to deduct certain expenses, including the costs of housing, food and clothing for themselves. The Commissioner disallowed both the assignment and deductions and this led to the notice of deficiency being issued to the petitioners.

6

At the time petitioners' case was pending, the Internal Revenue Service was also challenging the family trusts in at least eighteen other cases. Petitioners' attorney also represented taxpayers in these other cases. He entered into a stipulation on behalf of the petitioners with the Commissioner in February, 1980, in which it was agreed that a trial was unnecessary in this case, because the validity of the trust would be controlled by the Tax Court's decision in two pending cases. These decisions were handed down on December, 1980, and were adverse to petitioner's position. A decision pursuant to the stipulation was entered for the Commissioner and petitioners have filed a pro se appeal. In their brief before the Court, petitioners allege for the first time that the stipulation was entered into by counsel without the petitioners' knowledge or consent.

7

Upon consideration, the Court finds that petitioners are bound by the stipulation. They have shown no reason for their failure to raise this issue before the Tax Court and have also failed to show any fraud or overreaching by counsel. Brandl v. C.I.R., 513 F.2d 697 (6th Cir. 1975). Accordingly,

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8

It is ORDERED that the decision of the Tax Court be affirmed. Rule 9(d)3, Rules of the Sixth Circuit.

*

The Honorable John D. Holschuh, U.S. District Judge for the Southern District of Ohio, sitting by designation