No, not more Jarkesy motions. This blogpost concerns the buckshot pretrial motions in limine with which the parties bestrew the judge’s path immediately prior to trial, like those lovely flowerchildren preceding the bride at fancy weddings. Only this process is much less attractive to eye and ear. I’ll come to Jarkesy shortly.

Judge Christian N. (“Speedy”) Weiler is the recipient (or should I say victim?) of eleven (count ’em, eleven) such motions in Habitat Green Investments, LLC, MM Bulldawg Manager, LLC, Tax Matters Partner, et al., Docket No. 14433-17, filed 2/6//26. I’ve been blogging this vintage Dixieland Boondockery since 2020.  I’ve paid good money for rum younger than this case.

Now all y’all can read the eight (count ’em, eight) pages of Judge Speedy Weiler’s well-wrought prose your own selves. Perhaps you’ll then come to the same conclusion I did. If not, favor me with an explanatory comment. In either case, spoiler alert.

Judge Speedy Weiler denies six (count ’em, six) motions with prejudice, four (count ’em, four) without prejudice, plus one split-decision (can testify as to fact but not opinion, and Judge Speedy Weiler will sort it out on the trial).      

This is where Jarkesy comes in. Until the Supremes say otherwise (or the CCAs play mix-and-match), there are no jury trials in Tax Court. Hence no juries to be misled by “those whose beard and paunch are great of size” pontificating at length, unchecked by fact. The judge’s daily grist is sorting out such as these, and Judge Speedy Weiler wants his whack at them.

My good friend Peter Reilly, CPA, will want to add James D. Sullivan and Colleen M. Sullivan, T. C. Memo. 2026-13, filed 2/5/26, to his collection of successful Section 183 taxpayer wins.

True, Colleen’s mulching operation fails for want of documentation and for evidence that she abandoned the business when her mulching machine proved unsafe.

“With respect to Leaf-Cutter, Ms. Sullivan’s mulching business, we readily find that the Sullivans have failed to carry their burden of establishing that the activity was engaged in for profit. The Sullivans testified that the business was both established and terminated because of safety concerns….” T. C. Memo. 2026-13, at p. 14.

But their real estate development business and JD’s software operation survive.

JD had plenty of software development experience, spent his own money developing it (even dipping into his retirement money), kept a separate bank account, studied literature on the area he was working, cut expenses when revenue didn’t come in, and hired experts. Though the work satisfied his intellectual curiosity, his testimonial candor carried the day.

He and Colleen also had plenty of real estate development experience. They built and rehabbed homes in MN and MT  and MA, mostly with their own labor, and sold them. They lived in a tent for years in ME while trying to build a housing development and a new personal residence, showering at the YMCA until they got the water put in.

Judge Courtney D. (“CD”) Jones gigs them for poor bookkeeping, allocating too many expenses to the housing development and not enough to the lot where they intended to build their personal residence, but she Cohans that out.

Interestingly, IRS never challenged the amounts of their claimed deductions, only the profit motive. So they mostly win the software and real estate developing, and only get mulcted for mulch.

Another attack on the routine IRS Section 6751(b) summary J motion fails in Mossy Flats Property, LLC, Otemanu Land Holdings, LLC, Partnership Representative, T. C. Memo. 2026-14, filed 2/5/26. The Mossy Flatsers claim the supe who signed the RA’s Penalty Lead Sheet wasn’t his direct supe that day. 

Judge Jeffrey S. (“Schwer”) Arbeit won’t buy it.

” The record shows that SRA B was RA M’s immediate supervisor on April 2, 2023, when she approved his initial determination to assert penalties against Mossy Flats. SRA B’s signature appears on the penalty approval form, where her title is listed as ‘Team Manager– Group 1244.’ And both RA M and SRA B averred under penalty of perjury that SRA B was RA M’s immediate supervisor. Petitioner has failed to show there is a genuine dispute for trial.” T. C. Memo. 2026-14, at p. 6. (Citations omitted).

Merely claiming that the declarations of SRA B and RA M in support of IRS’ motion are “self-serving” doesn’t raise a question of fact. “…petitioner provides no explanation for its assertion that the declarations are inadmissible under Rules 121(c)(4) and 143(a). In fact the declarations appear entirely consistent with Rule 121(c)(4), which provides that declarations used to support a summary judgment motion must (1) be made on personal knowledge, (2) set out facts that would be admissible in evidence, and (3) show that the declarant is competent to testify on the matters stated. (Rule 143(a) simply provides that trials before the Court are conducted in accordance with the Federal Rules of Evidence.).” T. C. Memo. 2026-14, at p. 7. Taishoff says see also Section 7453.

Supervisors routinely move in and out. But there’s no evidence SRA B didn’t supervise RA M when he pulled the trigger on the Mossy Flatsers.