Attorney-at-Law

WOULDN’T IT BE

In Uncategorized on 04/17/2014 at 17:36

Mark A. Lovely, Docket No. 4855-14L, filed 4/17/14, gives me my text for today’s sermonette. Mark petitions and moves at once for summary judgment before IRS has answered.

I’ve already avowed my affection for summary judgment. See my blogpost “Summary Judgment – A Causerie”, 3/13/14. Where there are no disputed material facts to try, it’s a waste of time to go through pleadings, motions, discovery (formal and informal) and all that jazz, when by cutting to the chase, the outstanding legal issues can be addressed and adjudicated.

New York State recognizes this, but only in certain instances, and the Courts here are very strict in their arrest. The law says summary judgment motions instead of the usual complaints can only be used for  claims “based upon an instrument for the payment of money only”, and the Courts here take that to mean only promissory notes without concomitant security agreements, mortgages, et hoc genus omne.

But I would argue that, since a great number of Tax Court cases ultimately go to summary judgment, why not amend Rule 121(a) to let a petitioner ask for SJ off the bat? In the first place, the petitioner would have to lay out all the facts and attach all the papers.  In the second place, whatever petitioner says or attaches, she or he is stuck with it; no change of story afterwards, and no unsupported allegations allowed. Paper it or swear to it, but remember Tokarski; self-serving claptrap doesn’t count.  And unlike Hewlett-Packard and Consolidated Subsidiaries, Docket No. 10075-08, filed 4/17/14, we would have fewer motions for leave to file a fifth amended petition, and seven-page docket sheets. H-P seems to be averaging almost one amendment a year. Maybe they figure that eventually, by dint of the law of large numbers, they’ll get it right.

Oh yes, and in the third place, SJ narrows down whatever IRS has to deal with.

But Ch J Michael B. (“Iron Mike”) Thornton, correcter of sloppy paperwork, is constrained by the rules to bounce Mark’s lovely idea, as IRS hasn’t answered yet. Now all this required a reply from IRS to Mark’s motion for summary judgment. Would it not have been simpler for IRS to reply either (a) there are material facts in dispute, and these are they, or (b) there are no disputed facts, but the law is not what Mark claims it is? Under present Rule 121(a), there has to be an answer, which doubtless, when boiled down to essentials, will be one or both of the two foregoing alternatives. Then Mark can make his motion.

Time to amend Rule 121(a).

 

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