Attorney-at-Law

“THE SNOW FALLING FAINTLY THROUGH THE UNIVERSE”- PART DEUX

In Uncategorized on 04/18/2019 at 17:04

Judge Holmes again adverts to the magnificent closing passage of Jimmy Joyce’s greatest short story. It seems he finds the “snow faintly falling” as an insufficient precondition to shutting down the Glass House on Second Street and sending off all hands to teletubby chez eux.

Here’s Estate of Arthur S. Andersen, Deceased, Tena Haroldson, Eric Stoval and Harold Albright,  Personal Co-Representative, Docket No. 14067-14, filed 4/18/19.

Tena, Eric and Harold are working on a Rule 155 beancount after a T. C. Memo. I didn’t blog, but “an actual late-winter blizzard” (Order, at p. 1) prevented counsel from meeting with the trio and finishing up.

Judge Holmes will give them some time.

“The Court understands, since it seems to shut down when there a warning of a wisp of snow. See http://www.chicagotribune.com/news/ct-xpm-2009-01-29-0901281008-story.html (President Obama unsuccessfully calling for “flinty Chicago toughness” on snow days in DC). “Order at p. 1.

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DISCOVERY IN LIEU OF TRIAL

In Uncategorized on 04/18/2019 at 16:50

Seems like we’re heading toward this result, even in US Tax Court, despite homage to Branerton and Rule 71(c)(1)(B). But that Obliging Jurist, Judge David Gustafson, stands like Horatius at the “Play Nice” bridge, in Cross Refined Coal, LLC, USA Refined Coal LLC, Tax Matters Partner, Docket No. 19502-17, filed 4/18/19.

Cross Refined is anything but, with four (count ‘em, four) discovery motions. Two are for document production, one to review responses to requests for admissions, and the last to take a deposition. Judge Gustafson gives IRS a couple weeks (hi, Judge Holmes) to answer the lot.

But Judge Gustafson won’t play magistrate and supervise discovery. These trial court tactics don’t polish the windows at The Glass House on Second Street, NW.

He orders both sides to “…continue to confer with a view toward resolving these discovery disputes themselves, to the maximum extent possible. To this end, petitioner’s counsel shall initiate an in-person or telephone conference with respondent’s counsel at a mutually convenient time no later than Wednesday, April 24, 2019. As to the fourth of the motions, we observe that, under Rule 74(c)(1)(B), ‘The taking of a deposition of a party … is an extraordinary method of discovery.’ It seems likely to be even moreso [sic] when the party whose facts are the subject of the lawsuit proposes to depose the party with no personal knowledge of the facts and who first had access to the relevant information only after the fact and indirectly. On the other hand, the relative unavailability of depositions under the Tax Court’s rules may, in some circumstances, be a reason that the parties should be required to be especially forthcoming in response to other forms of discovery. The parties might consider this in their further negotiations.” Order, at pp. 1-2.

In short, cut the games and get with the program.

STJ LEW AS KING SOLOMON

In Uncategorized on 04/18/2019 at 16:37

Innocent spousery falls to the lot of STJ Lewis (“Honor That Name”) Carluzzo, as he enwraps himself in the mantle of a judge of even greater renown, in Elaine S. Thomas, Petitioner and Robert Roy Thomas, Intervenor, Docket No. 5680-18S, filed 4/18/19.

This off-the-bench designated hitter is about something less than $5K. STJ Lew questions the stipulated attribution of all to Rob Roy, but apparently is convinced by the record.

STJ Lew loves IRS counsel’s pretrial memo, which “…accurately and thoroughly (1) sets forth the background of this case; (2) describes the procedures respondent follows in such matters; and (3) lists the factors considered by respondent in responding to a taxpayer’s request for section 6015 relief. The pretrial memorandum also correctly notes that the Court, in general, considers the same set of factors respondent considers, although we are not limited to those factors or bound by respondent’s conclusions with respect to each factor.” Transcript, at p. 5.

It’s so good STJ Lew doesn’t bother to quote it. What a shame we all can’t read it, unless we surry on down to the stone soul picnic at 400 Second Street, NW; wouldn’t it be loverly if we could peruse each page at our leisure and at a dime a throw on PACER or equivalent?

STJ Lew cavils with only a couple points (hi, Judge Holmes, best holiday wishes to you and the whole crowd at The Glass House).

Elaine testifies credibly she didn’t know that Rob Roy was going to stiff the Federales, despite IRS and Rob Roy claiming she did know. Rob Roy was paying timely on a IA covering other years at that point, so she reasonably thought he’d throw this one in as well.

“We are more persuaded by the specific conduct pointed out by petitioner than we are by the general description of her and intervenor’s financial condition at the relevant time. We consider this factor neutral, rather than weighing against relief, as respondent scored it.

“On the other hand, because in the marital separation agreement, petitioner agreed to pay half of the…liability, we weigh the legal obligation factor against granting relief, even though respondent scored the factor as neutral.” Transcript, at pp. 6-7.

You can see STJ Lew reaching for that mantle, and the scourge of whips attributed by his successor to the famous Judge above-cited.

“We are particularly influenced by petitioner’s agreement to pay half of the [year at issue] liability. We are also influenced by the decision made by petitioner and intervenor to pay certain expenses rather than their [year at issue] income tax liability. Although the record shows their financial situation was less than comfortable, the record also shows that they had the resources to pay the liability but chose to save or allocate funds for other Purposes [sic]. Lastly, we are influenced by the fact that the unpaid [year at issue] liability is mostly, if not entirely attributable to intervenor. Giving effect to the martial settlement agreement, we see no reason why petitioner should continue to be liable for his share, nor do we see any reason why, or consider it inequitable to continue to hold her liable for hers.” Transcript, at pp. 7-8.