Michael Shamrock, et al v. CIR

Filing

Filed opinion of the court by Judge Posner. AFFIRMED. Richard A. Posner, Circuit Judge and Michael S. Kanne, Circuit Judge. [6825568-1] [6825568] [16-3811]

Case: 16-3811

Document: 16

Filed: 03/14/2017

Pages: 3

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3811
MICHAEL SHAMROCK and VICTORIA BIGG,
Petitioners-Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
____________________
Appeal from the United States Tax Court.
No. 028725-11 — Carolyn P. Chiechi, Judge.

____________________
SUBMITTED DECEMBER 13, 2016 — DECIDED MARCH 14, 2017
____________________
Before POSNER and KANNE, Circuit Judges.
POSNER, Circuit Judge. After the Commissioner of Internal
Revenue assessed tax deficiencies and penalties against Michael Shamrock and his wife Victoria Bigg, the couple filed a
pro se petition in the Tax Court for review of the Commissioner’s actions. Though not represented by a lawyer eligible
to practice at this time before the Tax Court, the couple was
assisted in its Tax Court proceeding by one Grant Niehus,

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No. 16-3811

who was and is a lawyer, but at the time was not eligible to
practice in Illinois.
On the basis of Niehus’s advice, the couple stipulated
that only half of the tax relief they sought was appropriate.
But discovering that Niehus wasn’t a member of the Illinois
bar, they asked the court to set aside the stipulation. The
court refused and entered judgment against the couple. They
appealed, and we reversed and remanded because Niehus
had indeed not been authorized to represent them, and we
were concerned that he might not have been competent to
advise them. We criticized the Tax Court for enforcing the
stipulation without even considering Niehus’s deceit, and
vacated the court’s opinion. But on remand (with the couple
now represented by a CPA, Sheldon Drobny, who was authorized to practice before the Tax Court), the court after a
hearing ruled in a 99-page opinion that the couple had not
been prejudiced by Niehus’s ineligibility to practice before
it—that the advice he had given them had been valid—and
so the court again dismissed the taxpayers’ suit, precipitating this second appeal to us.
As the Commissioner of Internal Revnue argues and the
Tax Court found on the second round, though Niehus was
indeed not authorized to practice law in Illinois at the time
of this proceeding, contrary to what he had told the taxpayers, he had provided “competent, valuable, diligent, and effective” assistance to them—indeed the court found they’d
been “well represented by him.” The taxpayers did not accuse him of malpractice, and we cannot see how they were
prejudiced by his actions.
The dispositive principle is “no harm, no foul.” Furthermore, as the Commissioner points out, given that there isn’t

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even any right to counsel in a Tax Court proceeding, in the
circumstances of this case justice did not require that court to
set aside the stipulation. Its judgment is
AFFIRMED.