That out-of-date slang phrase meaning certainty certainly doesn’t apply to Walker Clay and Timber, LLC, Walker Investments, LLC, Tax Matters Partner, Docket No. 23404-21, filed 5/21/26. So says Judge Benjamin A. (“Trey”) Guider, III, denying IRS summary J in yet another of their desperation attempts to stave off a valuation trial.

The Walkers claim their carefully-sculpted deed to 501(c)(3) Oconee River Land Trust, Inc., a perennial guardian of Dixieland Boondockery, precluded the previously permissible use of those 819.75 acres of swamp as a wetland mitigation bank. 

And no, I didn’t know what that was either; the National Environmental Policy Act of 1970 postdates my time in the Army Engineers. So when IRS claims the HBU of said swamp remains the same after the easement, hence any diminution said easement caused is worth zero, there is a fact question.

I’ll let Judge Trey Guider Judge-‘splain. 

“A wetland mitigation bank is defined as a site (or sites) where wetlands are ‘restored, established, enhanced, and/or preserved for the purpose of providing compensatory mitigation for impacts authorized by [Department of the Army] permits.’ 33 C.F.R § 332.2. Mirroring the regulation’s language, the [expert’s] report in this case stated that ‘[t]he proposed wetland mitigation bank on the subject property would include wetland restoration and enhancement, and wetland preservation.’ Ex. 1-J, at 81.” Order, at pp. 3-4.

The language of the deed, construed most favorably to the nonmovant Walkers, prohibits restoring, enhancing, and preserving to offset what the Engineers allowed somebody else to muck up. Presumably if you have a wetland mitigation bank, you can let somebody use your swamp to offset the swamp somebody else drained. But if you’ve given away that right, your swamp is worth less. 

So what exactly did the Walkers give away?

The bedrock of Tax Court discovery is informality. Now in its 52nd year, Branerton remains the touchstone, the standard: first comes the informal.

River Moss Property, LLC, River Moss Management, LLC, Partnership Representative, Docket No. 7324-24, filed 5/20/26 and IRS certainly followed where Branerton led. For an entire year they kept extending the Mosses’ deadline to review certain documents obtained from third parties by way of informal requests for privilege. When the Mosses wanted more time, IRS called the clock. The Mosses then moved for a Rule 103 protective order.

Ex-Ch J L. Paige (“Iron Fist”) Marvel doesn’t give the Mosses the cover.

First, the Mosses haven’t made out that IRS took sneak peeks at the confidential material (if indeed it is confidential). The Mosses had a year to figure out and haven’t gotten there yet. Let them do so now. And don’t say that IRS was dishonest without strong proof. “…we seriously caution petitioner against accusing another party of untruthfulness without strong evidence.” Order, at p. 3.

Secondly, and here’s the important point: “…the documents at issue were obtained pursuant to our informal discovery procedures. Rule 147 does not apply to informal discovery procedures. Moreover, we are skeptical that even Rule 103 applies to informal discovery procedures. See Fu Inv. Co., Ltd. v. Commissioner, 104 T.C. 408, 410 (1995) (‘Arguably, [informal discovery requests] do not fall within our discovery procedures, and, thus, are not subject to restriction under Rule 103.’)”. Order, at p. 3.

IRS’ discovery requests to the third parties stated at least twice that they were not subpoenas and that the third parties had no mandatory obligation to respond. Order, at p. 1, footnote 3.

“Just a friendly chat?” Beware!

Ex-Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan sustains the NITL that was left hanging at the last Tax Court visit of Bryan Edward Menge, T. C. Memo. 2026-41, filed 5/19/26, which I chronicled under the heading “Substantially Prevailed,” 12/16/22. Further background is discussed in T. C. Memo. 2026-41, at p. 3, footnote 2.

Here the NITL is sustained as to the four (count ’em, four) years that weren’t before 1 Cir, where Bryan Edward was battling a contractor holdback, a common source of controversy between contractor and owner. Bryan Edward didn’t contest his self-reported numbers; he claimed he was due a credit from the adjudicated outyear, but ex-Ch J TBS said that was decided at 1 Cir and so off the table.