In Uncategorized on 03/26/2014 at 17:31

Judge James S. (“Big Jim”) Halpern sends long-suffering IRS Attorney John (“Scholar”) Schmittdiel, Esq., to the head of the class in Tax Court Law and Procedure.

Remember Scholar John? No? Then you didn’t read my blogposts “Tax Court Admission Exam”, 9/6/13, and “He Passed the Exam”, 1/9/14.

Judge Big Jim chastised Scholar John for not opposing the intervenor’s motion for summary judgment in Stephanie Lynn Christie A.K.A. Stephanie Lynn Foran, Petitioner, and John Foran A.K.A. Arthur J. Maurello, Intervenor, Docket No. 24515-12S, filed 9/6/13.

Judge Big Jim hit Scholar John with an exam that would rattle the bones of even the most battle-hardened veteran of the Tax Court wars.

Remember these conundra now? ““May an intervenor move for summary adjudication in a proceeding brought pursuant to section 6015(e)? If so, does intervenor present an issue for which there is no genuine dispute as to any material fact and with respect to which a decision may be rendered as a matter of law? See Rule 121(b), Tax Court Rules of Practice and Procedure. In answering the last question, discuss whether interpretation of the judgment presents an issue of fact. If the issue presented by intervenor is ripe for summary adjudication, does petitioner’s claim for relief in this proceeding raise any issue identical to an issue decided in the judgment, by the State Court? If so, are the other elements of collateral estoppel satisfied? If they are, what is the issue and what effect does it have on us to determine the appropriate relief we may accord petitioner under section 6013(e)[sic; should be 6015(e)]. Respondent may address any other issues that he deems relevant.”” Order, op. cit., at p. 2.

Well, although Scholar John apparently passed the exam, we never got to see the answers.

But Judge Big Jim, anxious that all may know the answers, tells all in Stephanie Lynn Christie, a.k.a. Stephanie Lynn Foran, Petitioner, and John Foran, a.k.a. Arthur J. Maurello, Intervenor, 2014 T. C. Sum. Op. 27, filed 3/26/14. And Scholar John is IRS’ lead counsel on this one.

Here’s the answers: “We have not previously determined whether an individual intervening in a case pursuant to section 6015(e)(4) and our Rules has standing to move for summary judgment. We decide that he does. Rule 24(a)(1) of the Federal Rules of Civil Procedure provides that, on timely motion, anyone who is given an unconditional right to intervene by a Federal statute must be permitted to intervene. Federal District Courts have held that, under rule 24 of the Federal Rules of  Civil Procedure, an intervenor in an action or proceeding is, for all intents and purposes, an original party.” 2014 T. C. Sum. Op. 27, at pp. 3-4. (Citations omitted).

Whatever Steph could do, John a.k.a Arthur can do.

But that’s all, because John a.k.a. Arthur’s claim that the State Court divorce proceedings estop Steph from contesting that she’s liable for half the deficiency doesn’t fly.

In the first place, the State court proceeding resulted in a stipulation, and that’s not a judgment (per Restatement of the Law, Judgments 2d), but even if it was given the effect of a judgment, IRS wasn’t a party to the divorce proceeding, and can do what it wishes. And John a.k.a. Arthur admits as much. The State court proceeding only said Steph would pay what IRS decided she should pay, didn’t mention Tax Court or innocent spousery per Section 6015.

So no issue preclusion or claim preclusion. Maybe John a.k.a Arthur has some State court claim against Steph, who really bushwacked him, but that’s for another day and another court.

In the meantime, there are the usual fact questions, so, while John a.k.a Arthur can move for summary judgment, he loses.

And all these a.k.a.’s remind me of Sigmund Freud’s famous remark in his letter to Wilhelm Fliess, August 1, 1899: “I am also getting used to considering every sexual act as a process involving four individuals.” Sig would have loved Tax Court.

  1. Unfortunately this Order cannot be cited as precedent, even though it answers a previously unanswered question. I wish there were some way of using these, other than copying the reasoning.


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