In Uncategorized on 10/27/2014 at 16:21

Before lodging, filing and serving them, I mean.

I’ve complained about proofreading lapses in Tax Court orders often enough. However, lest I be thought a nitpicking curmudgeon when it comes to Tax Court only, I have two examples of submissions by attorneys that should not have gone out the door, or on the e-filing website, without a second hard look.

There may be more today, but I got tired of looking for them. So here’s one from IRS and one from petitioners’ counsel.

Let’s start with petitioners. Johanna Hernandez, Docket No. 10312-14, filed 10/27/14. There’s a companion case, Gary Martell, 22347-14, filed 10/27/14, but I’m working from the text of the Hernandez order, authored by Ch J Michael B. (“Iron Mike”) Thornton.

Reading this order, you’ll see why Ch J Iron Mike doesn’t bear that sobriquet for nothing. Ch J Iron Mike told Johanna to amend her petition.

Here’s what her attorneys did.

“…Johanna Hernandez, petitioner in Docket No. 10312-14, and Gary Martell, petitioner in Docket No. 22347-14, eFiled a Motion To Consolidate Docket Numbers. Attached to the Motion To Consolidate Docket Numbers is an Amended Petition. The Amended Petition bears no docket number, and the names of both petitioners improperly appear in the caption. The Amended Petition is improperly attached to the motion to consolidate instead of being filed as a separate document.” Order, at p. 1.

That’s the least of Johanna’s problems, however.

“Petitioners’ Motion To Consolidate Docket Numbers is also improper. Pursuant to Rule 141(a), Tax Court Rules of Practice and Procedure, ‘a motion to consolidate cases may be filed only after all the cases sought to be consolidated have become at issue.’ Pursuant to Rule 38, Tax Court Rules of Practice and Procedure, ‘[a] case shall be deemed at issue upon the filing of the answer, unless a reply is required under Rule 37, in which event it shall be deemed at issue upon the filing of a reply or the entry of an order disposing of a motion under Rule 37(c) or the expiration of the period specified in Rule 37(c) in case the Commissioner fails to move’. As [sic] follows, the motion to consolidate is premature.” (Order, at p. 1; I think Ch J Iron Mike meant to say “It follows that the motion to consolidate is premature”).

So Johanna, file a proper amended petition, and tell your attorneys to follow the Rules.

So that IRS doesn’t feel left out, here’s one of theirs. Saynab Hassan, Docket No. 21218-13S, filed 10/27/14. Saynab has enough troubles. She lives in Columbus, OH, she can’t drive, but there’s no courtroom space in Columbus, OH, so Saynab was told to show up in Cincinnati, OH.

In a teleconference, Saynab asked again for Columbus, but was told no space available, so get to Cincinnati.

But the Judge continues the case sua sponte, because he feels Saynab’s pain, and maybe the hard-laboring crew at 400 Second Street, NW, can find some room in the proverbial to put Saynab.

Now if I tell you that the Judge in this case is That Obliging Jurist, Judge David Gustafson, will you be surprised? Not if you’re a regular reader of this blog. I can’t count how many times That Obliging Jurist has gone the twain, when many wouldn’t even go the mile.

But there’s more. IRS hasn’t precisely covered itself with glory in getting this case ready for trial.

“…we doubt that this case has been given sufficient attention by respondent [IRS]. The pretrial memorandum was evidently constructed from templates, which in itself may be an economical and sensible practice; but in this case the memorandum as filed refers to ‘children’ (whereas the exemption for only one child is apparently at issue here) and refers to the child as petitioner’s ‘grandchild’ but then states contradictorily that the exemption deduction for a ‘qualifying child’ is unavailable because ‘the children [sic] are not related by blood to petitioner’. Respondent should determine which qualifications are actually lacking, in its view, and give petitioner the opportunity to respond to those focused contentions.” Order, at p. 2.

Judge Gustafson is truly obliging. But a little bit of preparation, and maybe a second (or third) read-through of your papers, and a glance at the Tax Court Rules, goes a long way, for attorneys on both sides of a case.


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