I have characterized Judge David Gustafson as The Obliging Jurist since 2012 (see my blogpost “We’ll Come to You,” 9/18/12). Only once before now have I found him to be unobliging, for which see my blogpost “‘Modest Experience,” 8/15/23.

Now Vitaly Nikolaevich Baturin, Docket No. 14796-14, filed 3/11/26, becomes the second disobliged (unobliged?) petitioner. I came late to Vitnik’s trudge through the US-Russia tax treaty, only starting in 2019. All I can say is this fight is over whether Jefferson labs paid Vitaly for services rendered or just pure research. Judge David Gustafson said services rendered hence US taxable income last month; see my blogpost “Another Bad Day for the Russians,” 2/5/26.

Vitnik wants clarification. Twice.

“‘Petitioner respectfully moves the Court to clarify what laws were/will be used for ‘judgement as a matter of law’ pursuant to provisions of Rule 121(a)(2).” Order, at p. 1. (Emphasis in original).

Judge Gustafson is remarkably abrupt. “The applicable law is set out in our Memorandum Opinion. We will not elaborate beyond that opinion.” Order, at p. 1.

“…petitioner seems to be asking us to answer two questions (“Question 1” and “Question 2”) to clarify the meaning of the Commissioner’s proposed language in a proffered stipulated decision. The parties should come to a common understanding of the document they will eventually submit as a stipulated decision. Where one of them has a question about the meaning of that language, they should reach consensus on a joint intention before filing. Petitioner’s Question 1 asks the significance of a previous refund on the amount of the deficiency to be entered, and Question 2 asks ‘[w]hether interest will be charged for’ the five year period between the… trial and the… entry of decision by the Tax Court. In a deficiency case, the Tax Court has no jurisdiction to determine interest on the deficiency. However, the parties’ stipulation for entry of decision may include (below the place for the judge’s signature) their extra-jurisdictional agreements (such as the Commissioner’s stipulation that interest should be abated, or his acknowledgement that the decision in the deficiency case does not resolve or preclude a claim for interest abatement). We encourage the parties to include such matters in the stipulation, if it would be expedient to do so. But the Court will not address matters not within its jurisdiction.” Order, at pp. 1-2. (Citations omitted).

Man, Is That a Question!

I doubt it ever occurred to Judge Travis A. (“Tag”) Greaves, when he assured the United States Senate Committee on Finance, back on 7/24/19, that “I will make every effort to balance the need to help these taxpayers understand the Court’s rules and procedures, while remaining independent and impartial,” he would find himself echoing the Rolling Stones and “perfecting ways of making sealing wax.”

I do hope that that wonderful source of blogfodder Amgen Inc. & Subsidiaries, Docket No. 16017-21, filed 3/10/26, doesn’t result in anyone’s 19th nervous breakdown, and that no one “owes a million dollars tax.” Howbeit, on with the story.

Back in July last year Judge Tag Greaves unsealed a co-promotion agreement between Amgen and nonparty Pfizer. Pfizer now wants Rule 161 reconsideration, but Judge Tag Greaves converts that into a motion to seal.

Unhappily, what Pfizer wants to seal bears heavily upon the leading issue in the case: who bears the cost of the healthcare reform fees (HCR)? HCRs are legacies of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), legislation that inspired half-a-hundred repeal votes and a celebrated Senate vote. Trade secrets, which are what Pfizer claims the stuff they want sealed to be, get sealed when disclosure would seriously impair the secretor economically. The bar is lower when the secrets don’t go to the heart of the case, but when justice must be done it must be seen to be done, and the sealing wax comes off.

But Pfizer slides under the tag.

The parties are willing to mask the exact numbers. That’s good enough for Judge Tag Greaves.

“To the extent Mr. M’s testimony addresses the mechanics of expense sharing, the nature of the fee obligations, the approval process, or the operative reimbursement structure, it lies at the core of the issues before us. The public’s right to access such testimony outweighs Pfizer’s interest in confidentiality. We therefore decline to seal those portions, except to the limited extent respondent concedes that discrete numerical figures may be sealed.

“By contrast, other portions of Mr. M’s testimony concern granular operational and budgeting details that do not bear directly on the reimbursement issue. The same is true for Mr. M’s testimony concerning a dispute between Amgen and Pfizer. Those passages were not meaningfully relied upon in the parties’ briefing, nor do they presently appear necessary to our ultimate disposition. With respect to such material, Pfizer’s demonstrated interest in protecting confidential commercial information outweighs the diminished public’s interest in disclosure. We will therefore seal those portions of Mr. M’s testimony.” Order, at p. 5. (Name and footnote omitted, but the footnote says that Pfizer’s proposal to put a summary of the sealed into the record has no basis in statute or reg, and only risks disclosing sealed stuff).

But before Pfizer breaks out the ’07 Salon Le Mesnil, Judge Tag Greaves has a parting shot.” Should it become necessary to reference any sealed testimony in our opinion, we will do so.” Order, at p. 5.

And there follow five (count ’em, five) pages with a line-by-line statement of what Judge Tag Greaves leaves out and lets in.

We have another post-BBA look at the Section 6235(a)(2) 270 day cutoff for issuance of an FPA after “any modification of an imputed underpayment” in Mammoth Cave Property, LLC, Mammoth Cave Manager, LLC, Partnership Representative, 166 T. C. 4, filed 3/9/26.

The mammoths base their SOL claim on the facts that the FPA was mailed to the wrong entity. The mammoths were changing addresses and partnership reps in the midst of COVID, and IRS was behind the curve on posting changes.

But ex-Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan finds that the right designated individual, who was so designated by whatever entity was Partnership Representative at the time, got all the relevant documents timely., and petitioned timely.

“Petitioner received adequate or minimal notice resulting in a timely filed Petition. It has not shown that it was prejudiced by errors in the NOPPA because the audit and communications between respondent and petitioner continued without interruption. After the NOPPA naming the wrong partnership representative was sent to the W address, petitioner timely submitted Forms 8984 and 8980, requesting an extension of time to submit a request for modification and submitting a modification, respectively. These actions resulted in the FPA’s being issued timely, and petitioner’s timely filing a Petition with this Court.” 166 T. C. 4, at p.11. (Name omitted).

And even if the address was wrong, no hurt, no foul.

Ch J Urda, and JJ. Buch, Nega, Pugh, Ashford, Copeland, Jones, Toro, Greaves, Marshall, Weiler, Way, Landy, Arbeit, Guider, Jenkins, and Fung are all on board with the above.

For the Tax Court ‘s first look at the post-BBA régime, see my blogpost “A New Day – Redux,” 7/2/25.