In Uncategorized on 07/23/2019 at 15:24

Y’all remember Joseph J. Zajac, III, Docket No. 1886-15, filed 7/23/19, no? JJZIII was here just last month, in my blogpost “Mulligan – A Causerie,” 6/18/19.

Maybe JJZIII read Judge Gale’s previous order as requiring only that he testify, because all the stipulated facts and documents are in evidence from the last trial, and all the rulings made by Judge Chiechi are still in effect. So maybe no new discovery is needed or permitted.

Nevertheless, JJZIII sends in “…a ‘Notice of Unavailability’, which provides in full: ‘Petitioner, pro se, will be unavailable from July 22, 2019, to August 19, 2019. No one is authorized to accept or respond to documents on the Petitioner’s behalf. Deadlines outlined in Court Order dated June 19, 2019, [sic] are not impacted.’” Order, at pp. 1-2.

Yes, the case is on for trial 11/19/19. But what new discovery there is to take place is a mystery, if everything that went in evidence on the last trial is automatically in evidence for this trial.

Still, Judge Gale is not amused.

“Consequently, petitioner is under a continuing obligation to comply with the requirements set forth in the Court’s Order dated June 18, 2019, and the Standing Pretrial Order. Those requirements include, among other things, an obligation to engage in informal communication and cooperation with respondent in preparing this case for trial. See Rule 70;2 Branerton Corp. v. Commissioner, 61 T.C. 691 (1974). Moreover, should respondent’s attempts at informal discovery in this case fail, he may seek formal discovery under our Rules, for example, by serving written interrogatories, see Rule 71, requests for production of documents, electronically stored information, or things, see Rule 72, or requests for admission, see Rule 90. Under such circumstances, petitioner would be required to file a timely and appropriate response under our Rules.

“In substance, petitioner’s Notice of Unavailability appears to be a tacit request that the Court allow him to disregard his trial obligations for a 28-day period. Such an action is not contemplated by our Rules. Accordingly, we will direct the Clerk of the Court to strike petitioner’s Notice of Unavailability from the record in this case, and we advise petitioner that any failure to respond to respondent’s proper and reasonable requests during the pretrial period is at petitioner’s own risk.” Order, at p. 2.

Still, I do not recommend telling the Judge you’re not around, when you’re on for trial.



In Uncategorized on 07/23/2019 at 15:05

IRS is trying the old smothering trick, attempting to stop Estate of Charles P. Morgan, Deceased, Roxanna L. Morgan, Personal Representative and Roxanna L. Morgan, Docket No. 592-18, filed 7/23/19, from putting in various out-of-Court declarations of the late Chas P. “…offered by petitioners for their truth, that do not qualify for one of the exceptions to hearsay set forth in Rules 803 and 804 of the Federal Rules of Evidence.” Order, at p. 1.

Now we all know from Evidence 101 that hearsay is whatever someone says out of court, where the one who said it isn’t in court to be cross-examined. Except stuff. The stuff is what the cited Federal Rules of Evidence say.

But Judge Pugh, like most judges, likes to make her own rulings on what is and what isn’t barred by those Rules. Blanket objections take away all the fun, and are therefore wet blankets in Judge Pugh’s courtroom.

“In Goldsmith v. Commissioner, 86 T.C. 1134 (1986), we declined to uphold a blanket objection and we declined to grant a blanket exception; instead we considered whether specific statements met a hearsay exception.

“Here too we will evaluate the admissibility of any statements under the hearsay exceptions as they arise at trial; we will not preclude petitioners from relying upon the residual exception found in Rule 807 in advance of trial.” Order, at p. 1.

IRS counsel can object as the trial goes along.


In Uncategorized on 07/22/2019 at 15:47

Or rather, I don’t, but Judge Gale corrects the electronic jamming of his order in Eileen Phyllis Strul a.k.a. Eileen P. Strul, Docket No. 26639-16, filed 7/22/19.

“Petitioner also requests that the Court clarify the last sentence of footnote two on the first page of the Court’s Order dated June 26, 2019, which reads: ‘In particular, and as discussed infra pp. 10-11, petitioner’s allegations may be relevant to the extent respondent was in possession of evidence that she was entitled to the premium tax credit but nonetheless failed to concede this case in a timely fashion.’

“The aforementioned reference to pages 10 and 11 of the Order dated June 26, 2019, was made with respect to the pagination of the Order as originally drafted before being electronically formatted for service, which caused a change in the pagination. The final sentence of footnote two instead should read: ‘In particular, and as discussed infra p. 8, petitioner’s allegations may be relevant to the extent respondent was in possession of evidence that she was entitled to the premium tax credit but nonetheless failed to concede this case in a timely fashion.’ We will direct that the Order dated June 26, 2019, be modified to reflect the correct pagination.” Order, at pp. 1-2.

Eileen also wants interest abated and her amended return for the year at issue dealt with, giving her a bigger refund. She gets most of what she wants from Judge Gale.

Of course, once you timely petition a SNOD, the whole year is up for grabs.

More than once I’ve found the pagination of opinions and orders, and transcripts of off-the-benchers attached to orders, scrambled by electronically-concocted pagination. I’m glad Judge Gale is dealing with this. It makes the blogger’s task (and the tasks of counsel who must quote from these) easier.

And I wish Judge Gale had designated this order. That would make my task even easier.