That’s Judge Morrison’s advice to IRS counsel, and all parties who want to preclude testimony but find they must avail themselves thereof on the trial.

Here’s Eric Maurice Pinckney, Docket No. 5050-19, filed 4/26/24. Setting the scene, “…respondent filed a Motion in Limine asking the Court to ‘preclude petitioner from examining Revenue Agent . . . M regarding his manner and motives in examining petitioner’s income tax liabilities for the years at issue.’ In the motion, respondent relied on Greenberg’s Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974). The Court did not rule on the Motion in Limine.” Order, at p. 1. (Name and citation omitted).

Ol’ Greenberg has been throwing out tales of woe at Exam for fifty (count ’em, fifty) years, with no end in sight.

Most pro ses never got the word that, when a SNOD is on the menu, the past is off the table. De novo means tabula rasa.

But IRS counsel calls M as a rebuttal witness, and saves Judge Morrison the trouble of deciding the motion. “Some of the testimony adduced by respondent from M involved ‘his manner and motives in examining petitioner’s income tax liabilities.’ Putting this testimony into the record suggests that respondent was no longer standing by its broad position in its Motion in Limine that all testimony by M as to his manner and motives in examining petitioner’s income tax liabilities is inadmissible. Later petitioner also examined M. During this examination, respondent made several oral objections to portions of M’s testimony. At least one objection was based on Greenberg’s Express, Inc. v. Commissioner. Making these specific oral objections suggests that respondent was no longer standing by its broad Motion in Limine position that all testimony by M as to his manner and motives in examining petitioner’s income tax liability is inadmissible.” Order, at p. 1. (Name and citations omitted).

Motions in Limine are the usual thing in Tax Court litigation. Might be a good idea to put one in up front, and ask the judge to reserve ruling until trial. But remember, if you decide (or are forced by the other side or the judge) to cross the threshold, the motion won’t save you if you miss an objection to testimony or documents.

“We conclude that the Motion in Limine did not preserve any objections that were not made by respondent orally during the testimony of M. All such oral objections were considered and resolved during the trial. Therefore the Motion in Limine is moot.” Order, at p. 1. (Name omitted).

So, if you need to object, say it loud.

Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan announces the appointment of Charles Jeane, Esq., as Chief Clerk of the United States Tax Court, said appointment to date from 19 April. Mr. Jeane had been acting Chief Clerk since January.

Now as we welcome Chief Clerk Jeane, we can hope for the appointment of a Public Affairs Officer to serve under him.

STJ Jennifer E. (“Publius”) Siegel’s three-page Sum. Op., Caren Kohl, a.k.a., Caren Rein, T. C. Sum. Op. 2024-4, filed 4/25/24, tells a story that’s all too familiar to those of us who served our apprenticeships in what was then called “the snakepit,” or “the zoo,” the calendar call in New York City Housing Part; mine was at 111 Centre Street, long ago.

Of course, STJ Publius’ exalted career path took her far from the sordid purlieus wherein this story takes place. To summarize, “… when she was in her early 50s, petitioner received a taxable retirement plan distribution of $10,342. She withdrew the money to pay past-due rent and to avoid being evicted by her landlord. Petitioner did not include the distribution in income on her 2018 Form 1040, U.S. Individual Income Tax Return.” T. C. Sum. Op. 2024-4, at p. 2.

Easy enough to recall lawyers with bushels of files, pro ses with haunted eyes, crying babies and muttering old folks, Court officers alternately harried or bored, a scene looking for a Daumier. Finally, a bank check handed over, a stip scrawled and handed to a clerk, and we head for the office and a dozen telephone messages.

“Petitioner’s position remains, however, that she should not be liable for the additional tax imposed by section 72(t) because she withdrew the funds due to economic hardship.” T. C. Sum. Op. 2024-4, at p. 2.

The ending is simple enough.

“Petitioner’s only argument in opposition to the imposition of the additional tax is that withdrawals made for economic hardship are exempt from it. To support her claim, petitioner points to section 72(t)(2)(I), enacted by the Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, div. T, 136 Stat. 4459, 5296 (2022). That provision exempts certain withdrawals made for emergency expenses from the additional tax. However, section 72(t)(2)(I) applies only ‘to distributions made after December 31, 2023.” Consolidated Appropriations Act § 115(c), 136 Stat. at 5297. It is not applicable to the distribution petitioner received in 2018. And because it is not, petitioner is liable for the additional tax on her early retirement plan distribution.” T. C. Sum. Op. 2024-4, at p. 3.

The law, of course, is the law, and STJ Publius may not vary it.

Taishoff, laboring under no such restraint, may point out that being homeless in Fun City is no fun. Especially for a woman in her fifties, early or late.

And, while I’m about it, why has OCC, underfunded, understrength, overworked and underpaid, as Danny Werfel would have us believe, allocated and deployed three (count ’em, three) of their hard-pressed attorneys to this case? Is Caren, broke and facing homelessness, a threat to the fisc equal to the clients of some of my two-Grey-Goose-martini luncheon colleagues?