Attorney-at-Law

JUDGE HOLMES ON SUMMARY JUDGMENT

In Uncategorized on 07/27/2013 at 00:42

The Judge Who Writes Like A Human Being, a/k/a The Great Dissenter, His Honor Mark V. Holmes, has written an Order that should be entitled “Summary Judgment Made Simple”. Though perhaps too simple for the in-the-trenches preparer, it might serve as a handout to clients to explain what to do when they get a Rule 121, and what will happen if they don’t do it.

The Order is Daniel Joseph Vanhook (sic), Docket No. 13284-12SL, filed 7/26/13, although Dan’s surname more properly should be set forth as “Van Hook”, as Judge Holmes does.

Judge Holmes remanded Dan’s NFTL case to Appeals, and when our story opens, Appeals revised its earlier disposition. Here’s the whole story, and I can do no better than quote Judge Holmes in extenso.

“After considering the case again, the IRS was willing to reduce, but not eliminate, Mr. Van Hook’s tax bill and decided that it would keep a lien on Mr. Van Hook’s property until he paid.

“The next step in this process is for the Court to review the IRS’s work, which it does through summary-judgment motions. The IRS will file papers in which the IRS lawyer will argue that no trial is necessary in this case, because (the IRS says) no relevant facts are in dispute — everything is in the record that the IRS Appeals Officer already looked at (and which is called the ‘administrative record’). That motion will argue that, on the basis of these undisputed facts, the Court has to rule in the IRS’s favor.

“The Court will also want to hear from Mr. Van Hook. He will have to file a response to the IRS’s motion. If he disagrees with the facts set out in the IRS’s motion — e.g., there’s something in the record that shouldn’t be there, or something that is missing from the record that should be there — then his response should point out the specific facts in dispute. If he disagrees with the IRS’s argument as to the law, then his response should also set out his position on the disputed legal issues.

“He should label this response ‘Petitioner’s Cross-Motion for Summary Judgment and Response to Respondent’s Motion for Summary Judgment’ on the first page so that it gets filed as soon as the Court receives it.” Order, at pp. 1-2.

Judge Holmes refers Dan to the FAQs found on the taxpayer information link on the Tax Court website.

But Judge Holmes warns Dan that if he doesn’t respond, then, “if appropriate”, he will lose.

Can’t be clearer than that.

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