“High up in the North in the land called Svithjod, there stands a rock. It is a hundred miles high and a hundred miles wide. Once every thousand years a little bird comes to this rock to sharpen its beak.

“When the rock has thus been worn away, then a single day of eternity will have gone by.” Hendrik van Loon, The Story of Mankind, 1921.

So one more little beak-slap at the side of The Rock of Svithjod at 400 Second Street, NW.

I have wearied my readers (these few, these happy few) before now with my reiterated recommendations for the improvement of the United States Tax Court, its operations and practices. I have regretted, and still regret, the necessity, but when I encounter such as Richard W. Medley, Docket No. 13511-22, filed 5/10/24, I again must suggest that Tax Court needs, and must have, some form of aid for the self-represented, whether an office for the self-represented, like the USDCs, or clerks or law secretaries deployed therefor.

I don’t have the latest statistics on the proportion of self-represented Tax Court petitioners, and I don’t know that Ch. Clk. Jeane and his subordinates keep any.* But a quick scan of any day’s docket shows a larger percentage of Tax Court pro ses than most, if not all, other Federal courts.

Mr. Medley wants STJ Adam B. (“Sport”) Landy to order IRS counsel and his own ex-counsel (who apparently bailed last year) to turn over files. Except ex-counsel “… stated to the Court that he returned to Mr. Medley ‘all materials (both hard copy and digital) Mr. Medley provided to Barnes Law at the outset of representation.’ Mr. Medley has not disputed receipt of these materials.” Order, at p. 2, footnote 2. So, since Mr. Medley tried neither informal nor formal discovery requests, his motion for discovery is tossed.

Mr. Medley also wants STJ Sport Landy to let him onto DAWSON to amend his petition and his reply to IRS’ answer, for which he’s already late. You can read STJ Sport Landy’s response for yourself at Order, p. 2. Spoiler alert- It’s strictly DIY.

Why judges and STJs need to be bothered with such stuff eludes me.

Now I know the urge to help is strong in Tax Court Judges and STJs. By way of illustration of the foregoing (as my high-priced colleagues would say), here’s Judge Christian N. (“Speedy”) Weiler testifying before the Senate Finance Committee in support of his appointment to the Tax Court Bench: “By my father’s example, he has shown me how to treat others with respect and kindness in all matters. My father has also shown me the importance of listening to my clients’ problems and how to work alongside them to help guide them to a resolution of their legal issue.” Opening Statement of Christian Weiler Nominee to be a Judge of the United States Tax Court, Senate Committee on Finance, July 21, 2020.

Far be it from me to disparage in the slightest Judge Speedy Weiler’s ideals, which all judges should embrace, or the assiduous practice thereof.

But might not a wise old clerk, or the equivalent of one of our State judges’ law secretaries, serve the same administrative function, guiding the perplexed and sparing both litigant and judge from the delay inherent in an overloaded docket? There are thousands of unnecessary orders issued to resolve problems that a phonecall (not The Phone Call), or a quick exchange of e-mails, with such a non-judicial assistant could solve. And expanding the Tax Court law secretaries’ role in this way could make that position even better training for whatever future path they follow.

I submit that at least part of the purported leisurely Tax Court atmosphere is caused by the dissipation of scarce judicial resources in administration. And it can be solved.

*Edited to add, 5/10/24: In point of fact, the hard laboring intake clerks and flailing date stampers in the fifty-year-old House That Vic Built do keep such statistics, among their other arduous labors. A tip of my battered Stetson to Sarah Silfies Finken, Esq., Administrative and Case Services Counsel, now serving as what we used to call an “acting jack”, an appointment without a rank, in Public Affairs, for turning me onto Page 21 of the FY2025 Congressional Budget Justification, wherein it is written “(I)n FY2023, taxpayers were self-represented (pro se) in 77 percent of the cases filed.” Jibes completely with what I thought; I doubt the number has changed since I started this blog. 

Once again, Judge Christian N. (“Speedy”) Weiler referees a discovery face-off between IRS and Carl B. Barney, Docket No. 5310-22, filed 5/8/24, with IRS looking for privilege wherever they can find it. You’ll find some backstory in my blogpost “A Retrieved Deposition,” 3/5/24. And if you’re a fan of unscrambling frittatas, Judge Speedy Weiler reprises Carl’s give-and-go with his for-profit colleges, and why Carl wants to bail from his Section 453 installment sale election, Order, at pp. 2-3.

As part of the bail, Carl filed three (count ’em, three) 1040-Xs, one for each year at issue. But before IRS could bounce them and hit Carl with a SNOD, IRS had to get an OK from the Joint Committee on Taxation (JCT), Congress’ uber-guru on taxation.

Much of the Order deals with IRS’ responses to Carl’s trusty attorneys’ last round of objections to what IRS claimed was privileged, which is the deliberative privilege of the Executive Branch and the client-attorney commonlaw privilege. Judge Speedy Weiler has the Cliff Notes in the Order, at p. 5.

But of course Carl’s trusty attorneys demand production of the Joint Committee stuff, to which IRS ripostes with US Const. Art. I, §6, cl. 1: “[F]or any Speech or Debate in either House [Senators and Representatives] shall not be questioned in any other Place.”

“The privilege is rooted in the separation-of-powers doctrine. Its ‘”central role” . . . is to “prevent intimidation of legislators by the Executive and accountability before a hostile judiciary.’” Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 502 (1975). The Supreme Court has held that the Speech and Debate Clause provides ‘protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch.’ Id. Legislators acting within the sphere of legitimate legislative activity ‘should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’ Dombrowski v. Eastland, 387 U.S. 82, 85 (1967).

“In determining whether particular activities other than literal speech or debate fall within the ‘legitimate legislative sphere’ we are to look at whether the activities took place ‘in a session of the House by one of its members in relation to the business before it.’ See Kilbourn v. Thompson, 103 U.S. 168, 204 (1880). To that end, we must determine whether the activities are ‘an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.’ Gravel v. United States, 408 U.S. 606, 625 (1972).” Order, at p. 6.

Judge Speedy Weiler’s biographical sketch doesn’t state whether he was on law review at Loyola of New Orleans, but if he wasn’t, he should have been. 

IRS flunks most of the privilege claims.

“There also remains the significant issue of whether the asserted speech and debate privilege extends beyond members of Congress or delegated congressional staff to include staff of the JCT. While we refrain from deciding the issue (which appears to be one of first impression), we are not inclined to extend the privilege beyond a member of Congress or his or her delegated congressional staff. Gravel, 408 U.S. at 625–28. In any event, respondent’s possession of the JCT documents may constitute a waiver of the congressional privilege. For example, while respondent has withheld a letter from JCT Chief of Staff Thomas Barthold to former IRS Commissioner Charles Rettig, it is unclear whether Mr. Barthold sent the letter at the behest of a committee member and why this letter remains privileged as it was sent to a member of the executive branch.” Order, at p. 8.

Anyway, IRS’ privilege log is “…incomplete or at a minimum too vague to determine whether a privilege applies. We do not accept respondent’s contention that ‘providing any additional information about the documents would reveal information subject to the asserted privilege;’ since we fail to see how disclosing the sender, recipient, date, or subject matter would otherwise disclose the underlying information within the document.” Order, at p. 8.

So Carl’s motion is granted in part, denied in part, and anyway without prejudice. Emphasis by the Court, and cheers from discovery geeks everywhere.

“Thou are a rare noodle, Master. Do what was done last time is thy rule, eh?” G.B. Shaw, Saint Joan, Scene VI

I’ve used that quotation before to call into question some hidebound adherence to precedent, but CSTJ Lewis (“A Rare Name”) Carluzzo shows that such adherence can serve the adherent well.

Justin M. Maderia, T. C. Sum. Op. 2024-5, filed 5/8/24, comes up light on the proof side when IRS claims he got a $192K in constructive dividends from the lobster brokerage corporation, 50% of whose stock he owned.

As the case is a small-claimer, one expects something less than top-of-the-line lawyering, but CSTJ Lew is beyond unimpressed with both sides here.

“Few facts have been stipulated. The First Stipulation of Facts and the First Supplemental Stipulation of Facts consist almost entirely of documents. Many of those documents, apparently intended by the parties to ‘speak for themselves,’ have little to say. Other than the Stipulations of Facts no evidence was offered by either party. No witnesses were called at trial, and no other documents were offered into evidence. Nevertheless, in opening statements and closing arguments, counsel for the parties relied upon facts not in evidence to support their respective positions. Those ‘facts’ are ignored in this Opinion.

“At trial respondent objected to the admission of stipulated Exhibits 9-P, 10-P, and 11-P. According to respondent, the information in the documents is not relevant. Ruling on respondent’s objection was reserved at trial. After consideration of what little evidence we have, we find that the information in those Exhibits is probative to the imposition of the section 6662(a) accuracy-related penalty here in dispute. That being so, respondent’s objections are overruled, and the documents will be received into evidence.” T. C. Sum. Op. 2024-5, at p. 2, footnote 2.

Justin’s trusty attorney, whom I’ll call Gene, may have saved himself and his client with those disputed exhibits. As IRS deployed two (count ’em, two) attorneys here, SMH, as they say on their smartphones.

The lobster brokerage’s 1120 doesn’t show how any expense stated therein relates to the alleged deficiency, nor does Justin’s 1040 show any payments from lobster brokerage other than salary and wages. Nor does it (or the attorneys) talk about E&P. The SNOD does, it is presumed correct, and Justin doesn’t contest any expense item, nor deny that lobster brokerage had E&P.

His trusty attorney’s arguments about Exam miscues get run over by Greenberg’s Express. But Justin does claim that he was audited in prior years, and whatever he got in those years from the lobster brokerage settled out at Exam, so all he did in year at issue is what he always did before. I infer that this was the stuff of the disputed exhibits, in which case Gene gets a Taishoff “Good Job, third class.”

“Considering petitioner’s apparent consistent course of conduct with respect to positions taken on his federal income tax returns over a period of years and the results of the examinations of some for prior years, we find that petitioner acted reasonably and in good faith with respect to the underpayment of tax for [year at issue]. That being so, he is not liable for a section 6662(a) penalty for that year.” T. C. Sum. Op. 2024-5, at p. 5.