In Uncategorized on 03/18/2014 at 15:37

Judge Gustafson, that obliging jurist, has finally had it with Henry J. Lazniarz & Gina M. Lazniarz, Docket No. 31002-09, filed 3/18/14. Apparently a day off on account of snow did not put Judge Gustafson in a better mood.

Remember Henry J.? No? Then refresh your recollection (as my high-priced colleagues say) with my blogpost “I Told You Once, I Told You Twice”, 11/14/13.

Henry J. had a trial, but trial counsel number one blew it, so Judge Gustafson let Henry J. have a substitution and a second chance, albeit that such beneficence is extraordinary.

Trial counsel number two was little better than number one, so Henry J. moved for another new trial. Judge Gustafson, apparently tired of Henry J.’s traveling circus, stamped the motion “denied”, with nothing more, so Henry J. (with trial counsel number three at his side, presumably) moves for reconsideration.

To explain the headline of this blogpost, Henry J. is apparently a disciple of the late great Gene (“Big Daddy”) Lipscomb, twice MVP lineman of the Super Bowl, in the glory days of the old Baltimore Colts. As Big Daddy used to say: “I just wrap my arms around the whole backfield and peel ’em one by one until I get to the ball carrier. Him I keep.”

Well, Henry J. is trying to wrap his arms around the whole Tax Court Bar until he finds a lawyer who can win his case, and him (or her) he’ll keep.

But Judge Gustafson calls the play dead.

A new trial is an extraordinary remedy, and rests within trial court’s discretion. It’s not automatic, and you’d better show the first trial was a disaster–or worse.

“The deductions that form the basis for this case are from tax year 2006, for which petitioners’ tax return was due in April 2007–six and a half years before their second trial. The IRS issued to petitioners the notice of deficiency on October 2, 2009–over four years before that trial. Thus, petitioners have long been on notice that they needed to assemble proof of their deductions.

“Moreover, at various stages in this litigation, petitioners have been allowed extra time to muster their evidence to substantiate their claimed deductions. When they first requested a continuance, it was granted; and when thereafter they moved for a new trial, that ‘extraordinary measure’ was allowed to them. A Tax Court litigant could hardly be entitled to more.” Order, at p. 3.

And save the Constitutional arguments for a criminal trial. “The Sixth Amendment to the U.S. Constitution provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense’, and this provision provides the basis for a criminal defendant’s contention that he suffered from “ineffective assistance of counsel”. But this principle does not apply to civil proceedings. See Cupp v. Commissioner, 65 T.C 68, 85-86 (1975) (“The sixth amendment of the United States Constitution deals with criminal prosecution and is not applicable to a civil proceeding”). Tax Court petitioners are permitted but are not required to hire counsel to represent them, and most Tax Court petitioners are self-represented.” Order, at pp. 3-4.

Note that even gross negligence on the part of counsel isn’t enough to warrant a new trial in Tax Court.

Henry J. got the benefit of every break, and then some.

Besides, the “new evidence” Henry J. now produces is a bunch of papers, some new and some old, thrown together, without any explanation why they weren’t presented years ago.

So the party’s over. Judge Gustafson: “Especially since Mr. Lazniarz is a person of substantial intelligence with substantial expertise and acumen in financial business matters, petitioners must now be held responsible for their decision thereafter to hire their second lawyer and commit the matter to him. They are certainly not entitled to hire an indefinite series of lawyers and keep retrying the case until one of the lawyers finally performs to their liking.” Order, at p. 5.

Henry J., you aren’t Big Daddy.



Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: