In Uncategorized on 03/06/2014 at 14:43

No surprises while The Judge Who Writes Like a Human Being, a/k/a The Great Dissenter (and implacable foe of the partitive genitive) Mark V. Holmes is on the case.

So it’s no-go for Robin A. Murphy, Docket No. 2955-13, filed 3/6/14.

Robin wants to amend her petition at the calendar call. Judge Holmes gives her an off-the-bencher turn-down, but explains why.

Robin and IRS agreed on every issue but two. Robin claims at calendar call that she was an IC, not at EE, for one of the years at issue, and that she did not authorize the filing of the 1040 for another year.

The latter contention, of course, would make her a nonfiler, with all the attendant additions to tax, interest and penalties appertaining thereto. Judge Holmes isn’t sure Robin wants that, but anyway IRS would have to do a lot of discovery to find out what Robin did mean by that, and the time for discovery is over.

As to the IC-vs-EE contention, “(M)oreover, the government would clearly be disadvantaged by this change in the theory of Ms. Murphy’s case. Changing one’s status from independent contractor to employee or vice versa involves an examination of a whole list of factors.

“It’s a multifactor test that varies from circuit to circuit and would have required the government, for instance, to come up with witnesses who know exactly what she did or what the conditions of her employment were during the year in question. They would have had to look at any employee manuals and other conditions of employment, and they simply had, government simply had, no opportunity to do any of this in the short period of time that Ms. Murphy gave them.” Order, at pp. 6-7.

Robin does have an entry in the Taishoff “excuses” prize-less sweepstakes.

“As to the reason that Ms. Murphy offered, she did describe the emotional trauma that she’s been suffering recently in the last couple of years where an unidentified stalker has affected her life, as well as a terrible roommate situation in which the roommate, a self-proclaimed witch, put black magic curses on her and left voodoo objects in her room. I want to be careful that we are not saying that she was asserting that she was herself ensorcelled here, but only that she had a very bad roommate situation that caused her emotional trauma and ultimately led to seek an order of protection to enable her to move from her apartment.” Order, at p. 6.

Not bad, Robin. But Judge Holmes, even though Robin actually got him to use the partitive genitive in the preceding paragraph, isn’t buying. Judge Holmes wasn’t that ensorcelled. So he immediately relapses into his old, anti-partitive-genitive, ways.

“But all that happened some time ago and doesn’t really suffice as a good reason for not bringing this very different theory of the case to the Court’s attention until the calendar call, or to the government’s attention, apparently, at the earliest, a couple weeks ago.” Order, at p. 6.

A “couple of years”, but a “couple weeks”? C’mon, Judge.

Anyway, Robin is stuck with her case as previously presented.

Takeaway- Rule 41 is liberal, but not that liberal. If you’re changing theories so as to require different items of proof, rather than just a different view of the law, you had better move fast.


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