Another old blogpost returns to haunt us in Peter Kuretski and Kathleen Kuretski, Docket No. 18545-10L, a designated hitter on 3/5/13.

Pete and Kath want a Rule 161 and Rule 162 rematch, a reconsideration and a vacatur of Judge Wherry’s previous decision. See my blogpost “Make Your Case”, 9/11/12, but it’s not on the underestimated payments issue, it’s the failure of Appeals to grant an alternative to collection.

You gotta admit Pete and Kath are inventive. Judge Wherry: “ In their motion to vacate, petitioners contend that I.R.C. section 7443(f), which provides for Presidential removal of Tax Court judges under certain circumstances, is unconstitutional under Article III of the Constitution. However, petitioners do not question our jurisdiction on that ground, which they could do at any time, Henderson ex. rel. Henderson v. Shinseki, __U.S. __, 131 S.Ct. 1197, 1202 (2011). Instead petitioners ask that if we agree with their contention, we first determine that section 7443(f) is unconstitutional and then, free of ‘the improper threat of interbranch removal’ from office, decide this case again on the record and previous briefing. They also ask that we consider all of the arguments in their motion for reconsideration as if made in their opening brief, rather than the record as it was submitted under the standard applicable to motions for reconsideration. It remains unclear how this remedy would address or solve the Constitutional question raised by petitioners.” Order, pp. 1-2 (Footnote omitted.)

Here’s the omitted footnote: “The Court has an independent obligation to determine whether it has jurisdiction over a case, and the parties cannot stipulate jurisdiction nor can they waive jurisdictional defects. Arbaugh v. Y& H Corp., 546 U.S. 500, 514 (2006) Charlotte’s Office Boutique, Inc. v. Commissioner, 121 T.C. 89, 102 (2003), aff’d, 42 F.3d 1203 (9th Cir. 2005). A determination by this Court that section 7443(f) is unconstitutional would not be conclusive of that issue. If there is a constitutional problem, such a ruling would not make a second determination of the case on its merits any freer from potential prejudice or duress than our first determination.” Order, p. 2, footnote 1.

In short, the constitutional argument is a loser because Judge Wherry is still on the case, and since Pete and Kath raise no new evidence, no substantive error, and no jurisdictional objection, they’re out.

And they don’t even get a Taishoff “good try”.