Taking my cue from E. G. Leutze, whose famous mural in U. S. Congress shows about the only progress in U. S. Congress…but this is a nonpolitical blog. So I shall soberly discuss Clint L. Martin and Jenifer Martin, T. C. Memo. 2026-40, filed 5/14/26, a coupled entry with Cousin Stephen and his spouse Amanda.

Clint and aforesaid family donated 13.3 acres to the striving, thriving municipality of Highland City, UT, which gratefully accepted same “to maintain th[e] property in perpetuity as preserved open space.” T. C. Memo. 2026-40, at p. 2, with all taxes paid through calendar year at issue and all costs of the transfer picked up.

IRS plays the usual avoid-trial summary J gambits: no CWA, no qualified appraisal, and no complete and correct appraisal summary attached to year-at-issue return.

Judge Cary Douglas (“C-Doug”) Pugh cuts to the cliché: no CWA, no deduction, no need for trial except any reasonable reliance or Boss Hossery defenses for the chops.

There’s no prescribed form for the CWA, except it must contain a description of the property, and an affirmative statement that no goods or services were provided in exchange (merely stating “donation” or “generous gift” is insufficient; Judge C-Doug has the receipts). Substantial compliance doesn’t get it, and Judge C-Doug won’t let Clint’s trusty attorney try to backdoor it in by citing UT law. 

“We need not decide what Utah law would provide because petitioners identify no cases (nor did we find any) applying the affirmative indication test to look outside a deed for a merger clause. And it would be contradictory to read a merger clause into a deed to satisfy a statute that, by its express terms, requires a written acknowledgment.” T. C. 2026-40, at p. 6.  (Emphasis by the Court).

Trusty attorney claims a Joint Letter signed by the Martins and the mayor of Highland City describing the donation, the Form 8283 filed with the year-at-issue return, and the deed, read together, satisfy the statute. Indeed, documents have been read together to satisfy Section 170(f)(8).

But the deed has no merger clause, stating it embodies the entire understanding the parties and can’t be changed or waived without a writing signed by the party against whom change or waiver asserted. 

What it does have is proof that whoever drafted the deed used a dime-store bargain and sale with the infamous “ten ($10.00) dollars and other good and valuable consideration” language that sank poor ol’ Randy Schrimsher. It also proves that same person doesn’t read this my blog. See, e.g., my blogpost “Merger,” 12/19/22.

Suffice it to say that the Joint Letter doesn’t say what the City was going to do with the property to preserve it as open space, nor that that wouldn’t benefit the Martins.

The plain words of the three (count ’em, three) documents don’t satisfy the statute, and no one claims they’re ambiguous. 

Take it from an old Army engineer and long-time dirt lawyer, those dime-store deed forms are unexploded ordnance. 

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?”