No, this post is not a prelude to Valentine’s Day. I’m writing about Judge Boasberg’s modification to his injunction against Dougie Shulman’s Legacy, the RTRP regulations.

You’ll remember that Judge Boasberg in D.C. District Court enjoined IRS from proceeding with the RTRP registration and CPE requirements; see my blogpost “Chevron, Mayo- I’m Loving It”, 1/21/13.

IRS says it will appeal, but hasn’t done so yet. IRS asks Judge Boasberg to lift his injunction pending appeal. Judge Boasberg says “no, but you can keep the PTIN program because Section 6109(a)(4) authorizes it, and Congress enacted that requirement, unlike the RTRP that Dougie Shulman made up”.

And IRS’ yelp about the money expended combines moneys that came in from PTINs and from RTRP registrations, so maybe the loss isn’t that great. Anyway, IRS can keep its existing staff on the job, and the testing centers open. Preparers may sign up voluntarily, to get an extra credential, and the PTIN operation can go on (but without requiring PTIN holders to take tests and CPE).

So here’s Judge Boasberg’s modification of the Loving injunction. “The Injunction is MODIFIED to make clear that the IRS is not required to suspend its PTIN program, nor is it required to shut down all of its testing and continuing- education centers; instead, they may remain, but no tax-return preparer may be required to pay testing or continuing-education fees or to complete any testing or continuing education unless and until this injunction is stayed or vacated by the Court of Appeals.” Order, p. 7.

Finally, in a slap against us bloggers, “The Service next maintains that staying the injunction would not substantially harm Plaintiffs both because their attorney allegedly told a blogger from Forbes that they planned to continue preparing returns this season even without an injunction and because they still have until the end of the year to pass the exam. See Mot. at 8. The Court, as a threshold matter, credits sworn declarations of parties over blog posts that attribute comments to an attorney. And here, as noted in the Opinion, two Plaintiffs indicated that the new regulations would cause them to close their tax-preparation businesses. See Loving, 2013 WL 204667, at *4.” Order, p. 5.

C’mon Judge, we bloggers really try to tell it like it is.

In the somewhat altered words of Samuel Taylor Coleridge, echoed by The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, Mark V. Holmes, in Diamond Packaging Corporation, Docket No. 24763-10, a designated hitter for a Friday when, as usual, no decisions are forthcoming.

See my blogpost “Guy on Board”, 9/13/12, wherein Special Trial Judge Daniel A. (“Yuda”) Guy, Jr., told the IRS and Diamond Packaging to play nice and do a proper Rule 70-Branerton show-and-tell. They didn’t listen.

Judge Holmes: “This case is the oldest one on the Court’s May 20, 2013 trial calendar for Buffalo, New York. Well less than a $1 million is at issue, yet the discovery spigot has seemingly been opened to its widest position; there are three pending motions to compel or review the sufficiency of responses to previous rounds of discovery, and filings with titles like ‘reply by respondent to petitioner’s response to respondent’s motion to compel responses to respondent’ first request for production of documents.’ It is not in the taxpayer’s or the Court’s interest to have to keep swimming in such a sea of paper given the stakes involved.” Order, p. 1.

Judge Holmes does a teleconference with the lawyers, tells them to do an agreed pretrial order, setting trial within six months, or if they can’t agree, each submits their own and Judge Holmes, unlike the Ancient Mariner, need stoppeth only one of two.

Until he does stoppeth one of two, or gets a joint pretrial order, “(T)he Court will hold in abeyance until then its action on the various discovery motions and will, if necessary, discuss them in a teleconference rather than order more written responses.” Order, p. 2.

Takeaway: Discovery is not the trial.