The bedrock of Tax Court discovery is informality. Now in its 52nd year, Branerton remains the touchstone, the standard: first comes the informal.

River Moss Property, LLC, River Moss Management, LLC, Partnership Representative, Docket No. 7324-24, filed 5/20/26 and IRS certainly followed where Branerton led. For an entire year they kept extending the Mosses’ deadline to review certain documents obtained from third parties by way of informal requests for privilege. When the Mosses wanted more time, IRS called the clock. The Mosses then moved for a Rule 103 protective order.

Ex-Ch J L. Paige (“Iron Fist”) Marvel doesn’t give the Mosses the cover.

First, the Mosses haven’t made out that IRS took sneak peeks at the confidential material (if indeed it is confidential). The Mosses had a year to figure out and haven’t gotten there yet. Let them do so now. And don’t say that IRS was dishonest without strong proof. “…we seriously caution petitioner against accusing another party of untruthfulness without strong evidence.” Order, at p. 3.

Secondly, and here’s the important point: “…the documents at issue were obtained pursuant to our informal discovery procedures. Rule 147 does not apply to informal discovery procedures. Moreover, we are skeptical that even Rule 103 applies to informal discovery procedures. See Fu Inv. Co., Ltd. v. Commissioner, 104 T.C. 408, 410 (1995) (‘Arguably, [informal discovery requests] do not fall within our discovery procedures, and, thus, are not subject to restriction under Rule 103.’)”. Order, at p. 3.

IRS’ discovery requests to the third parties stated at least twice that they were not subpoenas and that the third parties had no mandatory obligation to respond. Order, at p. 1, footnote 3.

“Just a friendly chat?” Beware!

Ex-Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan sustains the NITL that was left hanging at the last Tax Court visit of Bryan Edward Menge, T. C. Memo. 2026-41, filed 5/19/26, which I chronicled under the heading “Substantially Prevailed,” 12/16/22. Further background is discussed in T. C. Memo. 2026-41, at p. 3, footnote 2.

Here the NITL is sustained as to the four (count ’em, four) years that weren’t before 1 Cir, where Bryan Edward was battling a contractor holdback, a common source of controversy between contractor and owner. Bryan Edward didn’t contest his self-reported numbers; he claimed he was due a credit from the adjudicated outyear, but ex-Ch J TBS said that was decided at 1 Cir and so off the table.

Seventy (count ’em, seventy) years on, John Osborne’s title, if not his play, is going strong. This time, it bars Jorge Fernandez Maceira, Docket No. 20299-23L, filed 5/19/26, from claiming bankruptcy discharge of four (count ’em, four) years’ worth of income tax, despite a miscue by the SO as to one of those years.

Judge Benjamin A. (“Trey”) Guider III Judge-‘splains.

“SO C investigated whether petitioner’s tax liabilities for these years could have been discharged in his prior bankruptcy proceedings. Certain tax liabilities may not be discharged during bankruptcy, including liabilities based on late-filed returns which are filed less than two years prior to the bankruptcy petition’s filing. 11 U.S.C. § 523(a)(1)(B)(ii). The returns for tax years 2009–2012 were all filed late on December 12, 2013, and assessed on February 24, 2014. SO Cha found a bankruptcy indicator on petitioner’s account which began on December 23, 2013, and was reversed on April 1, 2014. Because the 2009–2012 tax liabilities were filed late and filed less than two years prior to the bankruptcy petition, they are precluded from discharge through bankruptcy. See id.

“Notably, SO C’s sole rationale for determining the liabilities’ discharge eligibility was because ‘[b]ecause [sic] the[] returns were filed and assessed within three years of [petitioner’s] bankruptcy filing.’ Doc. 26, Ex. 35-R. This reasoning seems to be grounded in 11 U.S.C. sec. 523(a)(1)(A)’s three-year lookback rule prohibiting the discharge of tax liabilities ‘for which a return, if required, is last due, including extensions, after three years before the date of the filing of the [bankruptcy] petition.’ 11 U.S.C. § 507(a)(8)(A)(i). Petitioner’s returns for tax years 2010, 2011, and 2012 were each due in April 2011, April 2012, and April 2013, respectively. As such, each of these returns were due in the three-year period prior to the bankruptcy petition’s filing in December 2013. However, petitioner’s 2009 tax return was due in April 2010. As such, this tax year falls outside of the three-year lookback period. Nonetheless, because the 2009 return was filed late and less than two years prior to the bankruptcy petition’s filing, 11 U.S.C. sec. 523(a)(1)(B)(ii) precludes this year’s liabilities from discharge.” Order, at pp. 7-8. (Name omitted). 

So SO C’s error was harmless.

IRS’ motion to toss for nonprosecution fails because, although Jorge’s ‘ participation has not necessarily been ideal, he has not been wholly unresponsive, and his conduct therefore has not amounted to a ‘complete lack of interest in presenting his case.’” Order, at p. 4. Jorge continuously asserted he’d paid tax in Puerto Rico, although presenting no proof until long after CDP was closed.

So Judge Trey Guider prefers summary J for IRS.