Attorney-at-Law

45 AND THE FIFTH AMENDMENT

In Uncategorized on 08/16/2022 at 17:04

This is still a nonpolitical blog, so I won’t comment on the recent appearance of a Former Person before a NY investigative body, where the Fifth Amendment was the plat du jour. Today the appraisers who invoked the sacred privilege against self-incrimination when IRS grilled them in Oconee Landing Property, LLC, Oconee Landing Investors, LLC, Tax Matters Partner, Docket No. 11814-19, filed 8/16/22, get to answer 45 (count ’em, 45) interrogatories, after having taken the Fifth whenever IRS breathed a word about  syndicated conservation easements.

Y’all will recall that IRS got Judge Albert G (“Scholar Al”) Lauber to get the appraisers into a deposition; see my blogpost “Why He Canceled Tuesday,” 10/12/21. But the appraisers took the Fifth thereat as aforesaid, and their crafty counsel also coined the “Section 6103  privilege.” But Judge Scholar Al says Section 6103 only criminalizes activities of IRS employees, which the appraisers certainly aren’t.

Immunologists. take note. “… respondent filed four Motions seeking to compel Messrs. W and V to answer the questions as to which these claims of privilege had been made. … the Court held an informal conference call with the parties and deponents’ counsel to discuss the Motions. We informed deponents’ counsel that we would have overruled all of his objections referring to section 6103 because that section imposes an obligation on IRS officers, not a privilege that appraisers may claim. Furthermore, we indicated that we would have overruled most (if not all) of his objections based on the Fifth Amendment because the questions asked were anodyne and appeared to create no ‘real danger’ of self-incrimination. Rogers v. United States, 340 U.S. 367, 374 (1951).

“In lieu of the Court’s ordering a second round of depositions, deponents’ counsel agreed that each deponent will respond to a maximum of 45 written questions posed by respondent. These questions should relate to matters as to which privilege was claimed during the depositions, including reasonable follow-up questions. All questions shall be answered under penalties of perjury, as was the case during the depositions. Deponents’ counsel was reminded that any objection to a written question premised on a supposed ‘section 6103 privilege’ will likely be overruled. If the Fifth Amendment privilege is claimed as to any question, deponents’ counsel shall supply a detailed explanation concerning the basis for that claim, cognizant that the Fifth Amendment protects against real dangers, not against remote and speculative possibilities. Zicarelli v. N.J. State Comm’n, 406 U.S. 472, 478 (1972).” Order, at pp. 1-2. (Names omitted).

Preparers and your coadjutors, beware! Are attorneys next? Watch this space.

AT LAST, A PROOFREADER

In Uncategorized on 08/15/2022 at 16:22

It seems like years have passed since I first suggested that Tax Court needs a proofreader for its orders. I’ve even volunteered for the job more than once.

Now, however, the position is filled. And the successful candidate filed neither the uniform application for Federal employment, a college transcript, a letter of recommendation, or anything else.

It’s Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan. On a day with 503 (count ’em, 503) orders and no opinions, nothing eludes Ch J TBS’ unblinking eye.

Estate of Robert E. Nero, Deceased, William C. Nero, Jr., Personal Representative, Docket No. 27374-21, filed 8/15/22, had chilled their beef with IRS, and memorialized same in the form of a stipulated decision.

This the parties tendered for entry of decision.

Not past Ch J TBS.

“…upon review of the proposed decision document, the Court notes that the caption listed thereon includes a typographical error.  Consequently, the Court is unable to process the parties’ Proposed Stipulated Decision.” Order, at p. 1.

But Ch J TBS will enter decision, embodying the terms of settlement hashed out by the parties,  in her own order. With the correct caption, of course.

Neatness counts.

THE LI GAMBIT?

In Uncategorized on 08/12/2022 at 11:01

I’m sure it’s just a scrivener’s error, but Hervey Lemeli, Docket No. 21054-21S, filed 8/12/22, gives me a chance to fire another broadside into Mandy Mobley Li, 22 F. 4th 1014 (DC Cir, 2022). That was the case where DC Cir called upon two (count ’em, two) attorneys, whose affiliations and qualifications, and whose stake in the outcome, were not immediately apparent, to explain Section 7623.

I thought Federal Circuit Court of Appeals Judges were adept at unscrambling Federal law without the assistance of passersby.

But I must print a correction. Unless there are two or more persons named Mandy Mobley Li, I mischaracterized Mandy Mobley as “obviously hapless” in my blogpost “Repeal Section 7623,” 7/8/22. A source informs me that Mandy Mobley has a J.D. from Syracuse University College of Law, an M.B.A. from the MIT Sloan School of Management, and an S.B. from the Massachusetts Institute of Technology. Mandy Mobley is also a 2022 Presidential Management Fellows Finalist. This makes the entire case even more perplexing.

Clearly credentialed counsel on both sides, so why go to the bullpen, much less to the bleachers? Surely DC Circuit can deal with Section 7623 their own selves.

Howbeit, today IRS has a motion to swap out an attorney. But it’s labelled as a motion to withdraw as counsel, as if OCC were bailing on the whole case. Maybe that’s what happened in Li.

Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan put it right.

“…respondent filed a document designated as a Motion to Withdraw as Counsel. However, the filing is more akin to a motion to withdraw counsel, insofar as respondent requests that MYC, who…filed respondent’s Motion to Dismiss for Lack of Jurisdiction, be withdrawn as counsel for respondent in this case. There is no objection to the granting of the Motion.” Order, at p. 1. (Name omitted).

So Ch J TBS recharacterizes appropriately, and MYC is auf’d. OCC stays in.