Attorney-at-Law

EARTH TO RESPONDENT

In Uncategorized on 02/16/2018 at 16:15

Judge David Gustafson is sometimes a trifle idiosyncratic in retaining jurisdiction over cases in long-term reporting mode. See my blogpost “He Loves Me Not, He Loves Me,” 12/8/17.

But when he has locked onto jurisdiction in a case, he grapples it with hoops of steel, as a much finer writer than I put it.

So here’s a designated hitter to close out the work-week before the born-again Presidents give us a three-day break, Robert Rose, Docket No. 2060-17, filed 2/16/18.

Back in November last year, Judge Gustafson put Rob and IRS on the 90-day reporting list, and explicitly retained jurisdiction.

But when IRS reported yesterday for the first time on the new regime, IRS’ counsel asked “Respondent requests that Judge Gustafson retains jurisdiction of this case and orders another status report due in May or August 2018.” Order, at p. 1.

It must have been a very long day for that Obliging Jurist, because Judge David Gustafson waxes a wee bit testy, giving IRS a wake-up call.

First, you make motions. Putting requests for judicial intervention in status reports runs the risk of your request being overlooked. Moreover, the Judge can’t stamp the document “Granted” or “Denied” without engaging in busywork.

But ever willing to go the twain, or even the thrain, when a litigant, be the litigant a humble pro se or even the Com’r hisself, asks him to go the mile, Judge Gustafson does it.

“Moreover, in this instance, the request was unnecessary, and no motion was needed. By the Court’s order of November 27, 2017, the undersigned judge had already retained jurisdiction and had already required the filing of periodic status reports (“… and every 90 days thereafter”). However, respondent’s inclusion of the request in his status report makes us suppose that he may have overlooked the requirement of periodic status reports in our prior order and might fail to comply with that requirement unless we issue yet another order.” Order, at p. 2.

Shortening somewhat C. L. Dodgson’s immortal line, Judge Gustafson says “What I tell you two times is true,” and confirms that his above-referred-to order remains in full force and effect.

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CAN’T DEVIATE IF YOU STIPULATE

In Uncategorized on 02/16/2018 at 13:39

We attorneys very often need to send our jackets to the cleaners; organic dry cleaners are good at removing the tire tracks left by the buses under which our clients have thrown us.

Here’s Timothy L. Blixseth, Docket No. 1422-14, filed 2/16/18. Tim’s counsel got IRS to drop Tim’s deficiency from $6 million to $1.3 million, and stipped to entry of decision in that amount.

Tim is unhappy with that. So unhappy is Tim, that he has his counsel move to have Tim relieved of the stip. Counsel claims that the magnitude of his error regarding an NOL Tim claims he had is so great as to shock the conscience.

Well, I don’t know about y’all, but as for me, it doesn’t even rate a Claude Rains Casablanca comment. And it certainly doesn’t for Judge Cohen.

Here’s Tim’s counsel’s story. “As the trial date grew near, most of my attention was focused in preparation for the expected trial in Timothy L. Blixseth v. Commissioner, docket number 24653-12. I did not give the Stipulation of Settled Issues the scrutiny it appropriately required. I glanced at paragraph 10 and believed that the amount that was being disallowed was the amount that was being allowed in that stipulation and that amount disallowed was the amount being allowed in the stipulation as the pass through loss.

“This was a unilateral error on my part. KB of District Counsel’s Office made no representation concerning the numbers and at no time tried to mislead me.” Order, at p. 2.

I will not, of course, name Tim’s counsel here. He’s suffered enough. I can’t think his carrier is particularly happy with his story, either.

But Judge Cohen, despite IRS’ “somber reasoning and copious citation of precedent” regarding not vitiating stips for unilateral mistake, told Tim and counsel last month that they could offer proof and try to show that could do better on a trial than they did by stipping out.

Of course they did, and can’t.

“Petitioner provides no reason to believe that he is likely to achieve a better result than the compromise reflected in the Stipulation, and a better result seems unlikely because of the unavailability of complete contemporaneous records, the necessity of estimates rather than reliable evidence of losses claimed, and the passage of time since 2008. His offer of proof shows no more than that witnesses would testify as to the preparation of returns in order to assert that the amounts claimed were correct.” Order, at p. 3.

Besides, going to trial would have a negative knock-on for another case, where Tim is tax matterer, that has been floating around for five (count ‘em, five) years.

“The record reflects substantial prejudice to the Court and to respondent if the settlement previously reached is vacated and trial preparations must begin anew. The record does not show an unconscionable result if the Stipulation is enforced. Neither legal precedents nor considerations of justice favor petitioner’s motion.” Order, at p. 3. (Citation omitted).

If I may draw an inference from Judge Cohen’s remarks, enough already.

If you want out of a stip, you’d better have a real good story. Especially if you just saved $5 million plus chops.

EVER OBLIGING, THE PRO SE’S FRIEND

In Uncategorized on 02/16/2018 at 13:09

The seemingly never-ending benevolence of Judge David Gustafson again manifests itself as that Obliging Jurist gives some well-meant advice to Christine Robinson, Docket No. 16653-17, filed 2/16/18.

Chris doesn’t want to stip to facts. IRS wants an OSC per Rule 91 to require Chris to tell Judge Gustafson (and IRS) why she doesn’t agree with IRS’ version of the facts.

Judge Gustafson explains.

“Under this Court’s rules, the parties have a duty to cooperate in preparing a joint stipulation (i.e., a written statement signed by both parties) setting out the agreed facts in the case. For Ms. Robinson’s information, we stress that the stipulation process is often a substantial help to the petitioner, especially a petitioner who does not have a lawyer. The stipulation usually includes documents that the petitioner would otherwise have to offer into evidence during the trial of the case–a process that the self-represented petitioner finds somewhat difficult. But when instead petitioner’s intended evidence is included in the stipulation (as the IRS seems to appropriately propose here), then that evidence comes in at the beginning of the trial without further effort by the petitioner. And in case Ms. Robinson is concerned that her cooperating in preparation of the stipulation might somehow bar her from producing at trial additional evidence not included in the stipulation, we assure her that it does not. She can offer additional evidence not included in the stipulation.” Order, at p. 1. (Emphases by the Court).

Judge, I can understand why you don’t want to watch a pro se fumble with trying to lay a foundation, struggle with hearsay and all its variants, and chew up time and transcript paper in the process of getting a bank statement or a credit card slip into evidence. Neither you nor IRS’ counsel is on the clock. And if I were on the case and on the clock, I’d have compunction about billing a client for that time.

Moreover, without prejudging, Judge Gustafson doesn’t think IRS is trying to wildcard in any off-the-wall, non-verifiable stuff.

But he’ll let Chris tell her side of the story.

I note that Chris’ case in set for trial in Columbia, SC. Well do I remember that city and the adjacent Federal premises from the days of my youth. But it’s Judge David Gustafson’s home territory, so perhaps his benevolence extends even wider around there.

Next up will be the story of one who stipulated not wisely nor well, but is stuck.