It’s an unending mantra in denying one’s own (or granting one’s opponents’) motions for summary judgment: affidavits from attorneys without personal knowledge of the facts are worthless.

And The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable Foe of the Partitive Genitive, Mark V. Holmes, is nowise loath to recite the same. But for once, the old mantra doesn’t dispose of the affidavit.

It’s a designated hitter, Edward Anthony Purvis & Maureen Helena Purvis, Docket No. 18817-12, filed 9/8/14.

Ed and Mo want partial summary judgment, granting them the Section 6694 reliance defense to both fraud and accuracy penalties for two of the years at issue.

We all remember the Neonatology three-legged stool: qualified adviser, told all the facts, and relied on in good faith.

Judge Holmes: “This defense is usually fact-intensive, and this case is no exception. While petitioners presented affidavits that asserted all three elements (although on the first element all we have is the title CPA and the apparent recommendation of a friend who’d used the adviser), respondent [IRS] countered with an affidavit from counsel in which she swore that she’d asked for records relating to the preparation of the returns and received in return only a blank CD.

“An affidavit of counsel is usually inadequate to counter a summary judgment motion, because affidavits on such a motion must be ‘made on personal knowledge’ and ‘set forth such facts as would be admissible in evidence,’ Rule 121(d), and litigating lawyers don’t get to be witnesses in a case.” Order, at p. 2.

As for litigating lawyers not getting to be witnesses, take a look at my blogpost “A Non-Christmas Carol”, 12/23/13, wherein I point out that the ABA Model Rule 3.7(3), which by dint of Tax Court Rule 202(a)(3) applies here, excepts from its prohibition cases where disqualifying the litigator-witness would “work substantial hardship on the client”.

However, we need not get there by that route, because Judge Holmes has a simpler way.

“But Rule 121(e) does allow such affidavits to show why a party can’t respond with the usual evidence in opposition to the motion. And this is what happened here with the blank disk. Moreover, the skimpy, and sometimes conclusory allegations in the affidavits in support of the motion trigger application of the principle that all reasonable inferences have to be drawn against the movant. So, for example, while the adviser is sworn to be a CPA we can’t just assume his competence as an adviser.” Order, at p. 2.

Compare and contrast this with STJ Daniel A. (“Yuda”) Guy’s approach, in my blogpost “It Depends”, 10/23/13, where STJ Yuda stresses the point that Marc Anthony Rael can’t reply upon his preparer Charlene M., because she is not a certified public accountant. I left aside, at the time, the question whether the CPA qualification was the sole indicium of expertise in Federal income taxation.

It might be time for The Great Dissenter and STJ Yuda to discuss this divergence of views over a cup coffee and a piece pie in the Judges’ cafeteria at 400 Second Street, NW.

But until then, no summary judgment for Ed and Mo.