Cases like Craig Bernier & Lynette Contreni Bernier, Docket No. 2196-26S, filed 5/13/26, are the daily gravel that comes to the Tax Court gold pan. The IRS sends form letters which addressees petition, even though none of same are deemed SNDs by Ch J Patrick J. (“Scholar Pat”) Urda or his colleagues. Hence the petitions are dismissed for want of jurisdiction.

So the petitioners are out sixty Georges, and their frustration, acknowledged in the boilerplate order, goes unredressed.

But is there a hidden nugget in the grit at the bottom of the pan?

IRS acknowledges in its filing with Tax Court that no SND was issued as at the date of the order. That acknowledgement also fixes a locus for 3SOL and 6SOL. If at a later date the SOL issue arises, there is the statement and the order embodying it. See FRE 801(d)(2).

Has any reader any experience to share? What do you tell a client in these circumstances?

Judge Rose E. (“Cracklin'”) Jenkins is circumspect, denying trusty attorneys for GO Risk Management, Inc., et al., Docket No. 14012-21, filed 5/12/26, a deposition of IRS’ expert witnesses, on the grounds that they failed to give advance notice to IRS’ counsel and the experts that they would seek deposition, and that trusty attorneys did not “elaborate on the other means considered or attempted” to show why the information sought could not be otherwise obtained.

They seek to depose Ms. M. (name omitted), to elicit “the bases of her opinions, specifically mentioning lack of specificity in her expert report concerning which documents she reviewed and how she selected samples of documents to review. Their motion also indicates that they seek to clarify the assumptions underlying Ms. M’s current opinions and the circumstances under which they might change. And petitioners raise questions about her actuarial judgment that they seek to answer. They state that the information sought is not readily available through the report alone, without addressing any other possible means of obtaining the information.” Order, at p. 1.

As for Mr. C (name omitted), they wish to clarify “the facts and data underlying his opinion, understanding his analysis, and exploring his knowledge, skill, experience, training, and education. They elaborate that his CV is unclear about the nature of his roles and responsibilities and how they qualify him as an expert or provide sufficient detail about his captive insurance to identify potential conflicts. Petitioners further argue that Mr. C’s report contains no information about the documents reviewed and question whether Mr. C drew conclusions from the absence of documents. And they argue that the report doesn’t identify sources, standards, and authorities for what Mr. C characterizes as standard practices. Petitioners also seek to determine whether alternative assumptions or comparisons would affect Mr. C’s conclusions. And they seek to clarify any quantitative analysis undertaken by Mr. C and the analytical framework used in reaching the conclusions. Petitioners represent that the information sought is not available by any other means, although they do not elaborate on the other means considered or attempted.” Order, at p. 2.

Taishoff says the point is that what trusty attorneys seek is a substitute for voir dire at qualification and cross-examination when the expert’s written report goes in as the expert’s direct testimony.  

Yet again I quote the immortal words of Colonel John Henry (“Wiggy”) Wigmore: “Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

And I recall from the days of my youth, when our New York Civil Practice Law and Rules were The New Big Thing, the adenoidal snarl from the cigar-laden lips of Old Greyback From Wayback: “Depositions? Any lawyer who needs a deposition needs a nursemaid. You sweat your witnesses hard before trial, boy, and sweat their witnesses hard at trial. Depositions? Bah! What’s the law comin’ to?”

That’s a term I hadn’t applied even to Judge Mark V. (“Vittorio Emanuele”) Holmes, who certainly fits the appellation. However, Judge Elizabeth A. (“Tex”) Copeland has drawn a litigant who vies for the title, Craig Walcott, Docket No. 21820-22, filed 5/11/26.

According to Judge Tex Copeland, Craig “pled guilty to one count of willfully attempting to evade tax, in violation of section 7201. After he had served his sentence of three years of imprisonment and three years of supervised release, he moved to vacate the judgment for lack of subject-matter jurisdiction, arguing that the United States had failed to identify a specific constitutional taxing power relevant to his case. The district court denied the motion, describing Mr. Walcott’s ‘characterizations of the law and Constitution’ as ‘frivolous.’ Mr. Walcott appealed to the U.S. Court of Appeals for the Tenth Circuit, which affirmed the district court. Mr. Walcott now plans to petition the U.S. Supreme Court for certiorari, and he requests us to continue the case so that we do not ‘waste this Court’s resources and risk producing a judgment that must be revisited,’ should the Supreme Court grant certiorari and affirm his argument that his criminal conviction was ‘premised on a constitutionally erroneous direct-tax theory’.” Order, at p. 7.

That’s a real never-say-die spirit, worthy of a better cause.

Now, having late-filed for three (count ’em, three) years and facing deficiencies for an aggregate $172K plus nonfiling add-ons and a couple Section 6662 chops (hi, Judge Holmes), Craig has seven (count ’em, seven) questions for IRS. I’ll defer to Judge Tax Copeland to deconstruct these, which she does at Order, pp. 5-6. 

Craig also wants a Rule 103 protective order, preventing IRS from mentioning Section 6673 chops in correspondence. “Mr. Walcott’s questions imply frivolous positions, such that justice does not require us to protect Mr. Walcott from the Commissioner asking the Tax Court to impose a section 6673 penalty on Mr. Walcott.” Order, at p. 6.

I expect we’ll hear more from Craig after trial, assessment, and the inevitable CDP.