No, it’s not Austin Powers.

Hearken back to my blogpost “The Carousel Is Closed”, 10/10/14. There, I wondered who the mystery witness might be, the subject of a Tax Court press release announcing the lockdown of the Special Trial Session on October 24.

Well, Judge Lauber tells us, in an eleven-page designated hitter in Amazon.com, Inc. & Subsidiaries, Docket No. 31197-12, filed 10/21/14.

It’s Mr. Brian Valentine, a fact witness, whose testimony will be heard only by the chosen few, designated in lists to be prepared by the Amazonians and by IRS, which lists were due to be handed in to Judge Lauber  yesterday.  See Order, at p. 8.

Just like a client (or a Judge) to order things done yesterday. And the order doesn’t require the litigants to exchange their lists, either.

But Judge Lauber is adamant. “Persons not on the parties’ lists (or persons not otherwise affiliated with the Court) shall not be permitted in the courtroom during fact testimony at trial unless otherwise directed by the Court. Petitioner shall have the primary responsibility to assure compliance with this paragraph.” Order, at p. 9. Even if they haven’t seen IRS’s list.

I can just see Jeff Bezos standing, with flaming sword in hand, at the door of Centre Court, 400 Second Street, NW, driving away eavesdroppers and the idly curious from the sacred precincts.

A dry spell in Tax Court sent me back two years for a headline (see my blogpost “Everything Has An End”, 10/10/12, although its relevance here is doubtful), and through seven (count ‘em, seven) pages of orders today, most of which concerned with the change of date for the Milwaukee trial session, not something of compelling interest to my readers, that stalwart band, who cannot plug taishofflaw.com into their URLs without, in Auden’s immortal words,  “a quickening of the heart, For who can bear to feel himself forgotten?”

Well, I felt myself forgotten on Friday, and so did my readers, based on the number of views my poor efforts have gotten. And there were two Memos today, neither of which brought any original message.

But The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Inveterate, Implacable Foe of the Partitive Genitive, Hon. Mark V. Holmes, has come through, bringing with him The End.

No, not Apocalypse Now, but rather the end of the Tax Court story for Montgomery W. Seitz & Stephanie W. Seitz, Docket No. 21998-11, filed 10/20/14.

Monty’s tale is a sad one. His trial “…was continued a first time when Mr. Seitz promised in 2012 to file an offer in compromise. He didn’t do so, and when the case was set for trial, the parties again asked for a continuance to let him try again. Mr. Seitz was unsuccessful in connecting with the low-income taxpayer clinics that the Court referred him to, and he finally mailed in the offer in compromise himself. It lacked the financial information that the IRS requires, however, and was understandably rejected. The Court again gave him more time, but he has yet to submit the required form. He has also never met with the IRS lawyer handling his case to participate in informal discovery.” Order, at p. 1.

And Monty never responded when IRS, understandably peeved to “feel itself forgotten”, moved to dismiss for want of prosecution, and Monty didn’t respond when Judge Holmes ordered.

Judge Holmes: “What takes this case out of the routine is the [sic] Mr. Seitz has spoken with the Court and IRS counsel several times – the Court believes him when he describes the failure of his small business (the business that gave rise to the deficiency), and believes him when he describes the severe health problems that his wife has suffered. In a conference call on October 16, 2014 he again described his extreme hard luck in business and his family’s health.” Order, at pp. 1-2.

Now we know Judge Nega would kick Monty, and presumably Stephanie as well, to the nearest curb. See my blogpost “Is There a Doctor in the House?” 10/16/14.

Judge Holmes, however, shows some sympathy. Notwithstanding, Monty and Stephanie must find their balm, if any, in Gilead, because they’re through in Tax Court.

“But this case has to come to a close. As the Court explained to him, even when a tax debt is assessed, the part of the IRS that will try to collect it will consider a properly submitted offer to compromise or will record the debt as currently not collectible if a taxpayer can show his straitened circumstances. Another part of the IRS – called audit reconsideration – may even consider whether to reduce a tax debt if a taxpayer finally produces records after the normal time to do so has expired.” Order, at p. 2.

So Monty, keep trying.  Just not in Tax Court.

Takeaway– Ya gotta try.

Knowing that his analysis will be subject to Seventh Circuit’s scrutiny, including without in any way limiting the generality of the foregoing (as my high-priced colleagues say) the jaundiced eye of Judge Posner who previously rebuked his levity (see my blogpost “There Goes the Neighborhood”, 9/4/13), Judge Wherry spends 89 (count ‘em, 89) pages knocking out the Section 166 bad-debt claims of John E. Rogers, Frances Rogers, and the platoon of “deep-pocketed investors” who bought into Mr. Rogers’s neighborhood, and must now pay dearly for the privilege.

Well, you may ask, didn’t Seventh Circuit blow off Mr. Rogers last August in Superior Trading, et al. v. Com’r, referred to in my blogpost abovecited?

Yes, but here we deal with the Hydra-headed creations wherewith Mr. Rogers sought to profit from the shelter-seeking deep-pocketed. And a mere listing thereof occupy three of the aforementioned 89 pages.

Again we see the sham partnership and the phony trust exploded, the lack of economic substance exposed, the disguised sale and the artificially-enhanced basis in bad Brazilian debt again stripped bare.

I won’t reiterate the other blogposts that Mr. Rogers afforded me. I do thank him for some good copy.

Oh, by the way, today’s installment is Kenna Trading, LLC, Jetstream Business Limited, Tax Matters Partner, et al., 143 T. C. 18, filed 10/16/14.

No concurrences, no dissents.

Judge Wherry has built his record as solid as can be. Because Mr. Rogers will appeal.

The famille Jansson (Fred, Nik, Margareta, and Jan) are all lined up to try for summary judgment, and IRS’s defenders are on the field as well, hands upraised.

Remember the Janssons’ first try? No? Well, see my blogpost “A Trust is a Trust is a Trust”, 2/26/14. Back then, the Janssons and their partnership were arguing that Roth IRAs weren’t TEFRA pass-thru partners, so IRS had to give the Roth trustees NBAPs. But that stalwart, The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Inveterate, Indefatigable, Implacable Foe of the Partitive Genitive, Mark V. Holmes, gave the Janssons the right-about-face. The Roth IRAs are pass-thrus, so the trustees and not IRS has to pass through the NBAPs. If they don’t the Janssons can’t uncouple from the FPAAs that rain upon the head of Block Developers, LLC.

Now for today’s story, Block Developers, LLC, William J. Maxam, APC, Tax Matters Partner, Et Al., Docket No. 3198-10, filed 10/16/14, a designated hitter from The Great Dissenter, etc.

Discovery happened, and now the fence whereat the Janssons fell last time out is removed. You remember that IRS has to know the “names, addresses and profits interests” of all the indirect partners, the passed-thru types, so as to send them NBAPs, failing which the indirects can opt out of TEFRA and go solo on what would have been partnership items, but now become non-partnerships by virtue of the opt-out provisions.

Well, that info wasn’t on any Form 1065 from Block, nor did the Block tax matterer furnish same per the 26 CFR §301.6223(c) route.

But the Janssons and their tax matterer claim IRS’s revenue agent, combing through Block’s records during audit, found out.

“Block, however, does argue that the Commissioner had the ‘names, addresses, and profits interests’ of its indirect partners in its own records – informally ‘furnished’ or figured out by IRS agents it doesn’t say – much more than 30 days before it mailed out the NBAP to Block’s TMP for either of the two tax years at issue here. It argues that subsection 301.6223(c)-1(f) is the key.” Order, at p. 3.

OK, so what? The IRS doesn’t have to search its records, does it? Or launch a detailed investigation into every piece of paper or whispered rumor that swims into its ken.

Right, says Judge Holmes, that’s what the reg says.

But willful blindness doesn’t cut it, either. And Judge Holmes is Tax Court’s resident mayvin on willful blindness. See my blogpost “Lawyers Can’t Add”, 1/17/13.

And caselaw bears him out. IRS knew something, and couldn’t ignore it. But did it know enough?

Before Judge Holmes rushes to (summary) judgment, he spies a question of fact in the road thereto.

Notwithstanding Block’s counsel’s winkling an admission out of IRS that they knew each Roth IRA had but one beneficiary (and a Taishoff “good job”, first class, to Bruce Michael O’Brien, Esq., and his team at Higgs, Fletcher & Mack in sunny San Diego, CA), that doesn’t mean that IRS knew the “profits interest” of each.

Before you say “Huh? One beneficiary means the whole enchilada, nicht wahr?”, let Judge Holmes explain.

“In these cases, that is a very contested ground. One of the Commissioner’s arguments is that Block was actually a scheme to undervalue a related firm named Soil Retention, Inc. that Block purchased in what was arguably a far-from-arms’-length transaction to transfer value from its owners (beneficiaries of two of the IRAs involved) to their children (beneficiaries of the other two IRAs involved). The FPAA lists several theories for why this violates the Code, and we have to agree with the Commissioner that one reason for his issuing the FPAA was that he did not know if the nominally equal beneficial interests of the indirect partners in fact was aimed at concealing what fundamental principles of tax law would show to be an unequal interest in the profits of the business that Block putatively owned. This is a genuine dispute about a material fact….” Order, at pp. 4-5. (Emphasis by the Court).

IRS blocks that motion. Just barely.

Maybe so Tax Court should have one or two MDs on call.

In furtherance and in explication of the foregoing, as my lamenting-the-collapse of -the-DJIA colleagues would put it, compare and contrast Ralph O. Lewis, Jr., Docket No. 16108-12S, filed 10/15/14, with Kenton Ridgeway Fleming, Docket No. 4925-12S, filed 10/16/14.

A brace of continuance motions in two-year-old small-claimers, so nothing very exciting, right?

Well, Ralph O., Jr., claims “…he has been hospitalized four times since January 2014, with the latest being on October 2, 2014, and is scheduled to have Bypass surgery. Attached to the motion, are Declarations of Tarciso C. Diaz, M.D., petitioner’s physician, and Tami Elan, petitioner’s former legal assistant.” Order, at p. 1.

The case, having been twice previously continued, is on for trial 10/27.

IRS apparently has a short fuse, and ripostes as follows: “(1) petitioner is an attorney and has failed to provide substantiation documents, (2) he has not communicated with respondent on the stipulation of facts and trial preparation, and (3) respondent objects to any further continuances in this case.” Order, at pp. 1-2.

Judge Nega: “The Court is sympathetic to petitioner’s situation. While such circumstances are sometimes a reason to continue a case, a continuance should be granted only if the passage of time will better enable the parties to try the case. In a circumstance like this, a continuance may have the disadvantage of making it only more difficult to assemble documents and witnesses to prove the facts pertinent to that year. Health problems is [sic] indeed an issue that the Court takes seriously, but of course it is not a reason to defer indefinitely the resolution of a case.” Order, at p. 2.

So, unless Judge Nega is as obliging as Judge Gustafson, and will try Ralph O., Jr.’s case in the recovery room, wheel ol’ Ralph O., Jr., in on a gurney, and let’s have a trial.

After all, who says attorneys have a heart, anyway?

But, for Judge Morrison at least, Kenton Ridgeway’s kidney trumps Ralph O., Jr.’s heart.

Judge Morrison: “Fleming informs the Court that since August 2014, he has been in considerable pain because of kidney stones. He also informs the Court that the medication prescribed by his doctor have [sic] created side effects that have made it impossible for him to go about his normal life. He further informs the Court that his mental faculties may be impaired. The circumstances warrant a continuance of the trial.” Order, at p. 1.

Now a Rule 91(f)(2) motion was granted, so there’s no jousting about facts here, a Standing Pretrial Order has been served, and there’s been one continuance already.

But this case is also on for trial next week.

To support his tale of woe, Kenton Ridgeway has no declarations from doctors, former legal assistants, or any one else. Moreover, IRS hasn’t tagged Kenton Ridgeway with the disparaging epithet of “attorney”.

So maybe there should be a doctor or two in the house at 400 Second Street, NW.

Footnote to the Foregoing

 Judge Nega is tougher at sick call than ol’ Sergeant Longry, late of dear old Tent City, Fort Jackson, South Carolina. Just as I was finishing the above, I stumbled upon Theodore L. Vallas & June D. Vallas, Docket No. 22105-12S, filed 10/16/14.

Here’s Ted’s story.

“Petitioners’ motion states that Mr. Vallas is involved in another legal matter, and that he is 93 years of age and only capable of focusing on only one of these matters at a time. Petitioners’ motion further states that respondent does not object to the granting of the motion.” Order, at p. 1.

Very politely, Judge Nega tells Ted to fall in and march. He omits certain colorful metaphors that ol’ Sarge would have bestowed.

“The Court is sympathetic to petitioners’ situation. While such circumstances are sometimes a reason to continue a case, a continuance should be granted only if the passage of time will better enable the parties to try the case. In a circumstance like this, a continuance may have the disadvantage of making it only more difficult to assemble documents and witnesses to prove the facts pertinent to that year.” Order, at p. 1.

Brings back memories.

“Baby, Let Your Hair Hang Down”

The words of Gus Cannon, songwriter and eponymous chief of the Cannon Jug Stompers, from back in 1929, echo in the order of Judge Kerrigan to the IRS’ obstructionist counsel in Eaton Corporation and Subsidiaries, Docket No. 5576-12, filed 10/15/14.

And the person directed to “walk right in and set right down” etc., is Patricia M. Lacey, the “primary author” of the 134-page document that IRS used to blow off the APA that Eaton had with IRS concerning its DomRep breaker-buddies.

Breaker breaker, good buddies. Do you remember Judge Kroupa’s opinion relegating Eaton to the burden of proof to show that IRS was arbitrary, capricious and acted without sound basis in fact or law? No? Well, click on my blogpost “Advance and Retreat”, 6/26/13, and refresh your recollections.

Thereafter, Judge Kroupa joined the ranks of the Retired Persons, so Judge Kerrigan came in from the bullpen.

Judge Kroupa had ordered IRS to produce for depositions one or more of their personnel with “firsthand, substantive knowledge of the specific ground(s) that respondent relied on in canceling the APAs and the specific facts supporting each ground.” Order, at p. 1.

IRS did, but IRS’ counsel interposed numerous objections, told witnesses not to answer questions, and prevented witnesses from testifying.

If you ever did a depo in the bad old days here in the Big Apple before Uniform Rule 221 was adopted, you’ll remember the speaking objections, the direction of witnesses not to answer based on flimsy excuses, the barely-surreptitious prompting of witnesses, and enough other maneuvers to give the late great Dr. Eric Berne material for a second volume of “Games People Play”. Well, the Uniform Rule put paid to most of that (although given we lawyers’ propensity for pushing the envelope, gameplaying still happens, albeit it less blatantly).

But Tax Court has no such rule  (and I hereby respectfully suggest the Tax Court adopt same).  Rule 85(d) with its “unless reasonable objection thereto is made at the taking of the deposition” is a featherduster where something stronger is wanted.

Eaton claims that, when they deposed Steve Musher, Associate Chief Counsel (International) and Chief APA Canceller, he didn’t know who said what or did what when Eaton’s APA was shot down at his deposition, except there was a lot of communicating. And IRS hands over Ms. Lacey’s 134-page megillah (I need not, of course, translate), which Eaton can read and weep.

“Petitioner [Eaton] contends that this document is not comprehensive. Petitioner further contends that Ms. Lacey, the primary author of the April 4th document, was not allowed to describe the specific justification for, and the factual support underlying, the cancellation of the APAs.” Order, at p. 2.

So Judge Kerrigan has had it with IRS counsel’s tactics, although they did bring back nostalgic recollections, like when I stormed out of a depo to find a judge for a ruling, watched hours of posturing, muttered imprecations, and grinned at wannabes slamming papers on tables.

“…petitioner’s motion to compel discovery is granted in that respondent [IRS] shall make available for deposition Ms. Lacey to provide substantial knowledge of the specific ground(s) that respondent relied on in canceling the APAs and the factual bases underlying the justifications therefor, including information from her December 5, 2011 memorandum on that addresses reasons for canceling the APAs on a date agreeable to both parties no later than November 5, 2014.” Order, at p. 2.

So Eaton’s counsel will be “listenin’ to Lacey”.

Oh yes, and report, guys.

Takeaway–This post is more for lawyers than preparer types, obviously, but if any preparers get caught in one of these, take this as a heads-up.

Reflection on the Foregoing

Perhaps I was a wee bit hard on IRS’s counsel. Now I’m not currying favor; if we get in a fight, we go at it, mindful always of the rules but hitting as hard as we can.

That said, there’s a difference between a singed earth defense and a scorched earth defense. Eaton’s counsel, having an uphill fight, as I pointed out in my blogpost abovecited, while carrying the burden of proof, must perforce prove their case out of their adversary’s mouth.

So Musher and Lacey are fair game. And Eaton’s counsel have to hit them hard. From Judge Kerrigan’s order, all I can gather is that Musher bobbed and weaved, while IRS’s counsel pulled what we called in my youth Court Street tactics. And it might be that Musher just signed off on whatever Lacey put before him.

But having bailed out Musher, apparently, IRS’s counsel went the one step beyond.

Lacey was clearly the point person in blowing off Eaton’s APAs; she has a tale to tell that’s harder to obscure, but obscure it they must.

So Lacey needs artillery, and IRS’s counsel opens up.

I’d have done the same. But it’s as well to remember that counterbattery fire comes quickly. And the line between singed and scorched is mighty fine.

No, not the “long and the short and the tall”, as credited to Fred Godfrey and sung by generations of UK servicepeople. Rather, this is a call to Treasury and IRS to update Notice 2004-83, 2004-2 C. B. 1030, 12/27/04, to expand the current list of blessed Private Delivery Services (PDS), whose receipts satisfy Section 7502’s “mailed is filed” rule.

To recap the blessed communion, fellowship divine:

“1. DHL Express (DHL): DHL Same Day Service; DHL Next Day 10:30 am; DHL Next Day 12:00 pm; DHL Next Day 3:00 pm; and DHL 2nd Day Service;

“2. Federal Express (FedEx): FedEx Priority Overnight, FedEx Standard Overnight, FedEx 2 Day, FedEx International Priority, and FedEx International First; and

“3. United Parcel Service (UPS): UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express.”

These, only these,  and no others need apply.

I’ve blogged again and again how any but the blessed come up short in the race to 400 Second Street, NW, in Our Nation’s Capital.

So, IRS and Treasury, why not list whatever FedEx, UPS and DHL have to offer? Why are these animals more equal than the others?

Now Ch Judge Michael B.  (“Iron Mike”) Thornton winds up and delivers a five-page strikeout to Tara E. Lewis, Docket No. 14393-14, filed 10/14/14.

Of course Tara E. sent the petition to IRS and not Tax Court, but that’s no biggie; IRS’s communications are licensed to mislead and confuse the taxpayer.

“Even confusing correspondence, written or verbal, during the administrative process cannot override the clearly stated deadline in the statutory notice of deficiency. Such confusion is not uncommon given that the IRS frequently treats as separate processes or proceedings what taxpayers view as a single dispute. Taxpayers not infrequently have also conflated this Court with an IRS unit, but the IRS is a completely separate and independent entity from the Tax Court.” Order, at p. 4.

Tara E. did, she says, send the petition on the last day of the Magic Ninety by FedEx, but she used FedEx Express Saver. Now check out the sacred scripture hereinabove set forth (as my high-billing colleagues say). Unlike old Abou Ben Adhem, FedEx Express Saver’s name doesn’t lead all the rest, it isn’t even there.

Worse, Tara E. got the purple-and-grey FedExer to write the date in pencil on the package, and Tara E. swears the dude told her that the package would be marked that date in the Book of Gold or wherever FedEx keeps its sacred writings.

Well, of course it doesn’t, the computer puts in the next day. And that’s what counts.

So Tara E. sent her petition to the wrong place, by the wrong means, relying on the wrong advice, and, as far as Ch J Iron Mike is concerned, a day late.

Ch J Iron Mike spends four pages discussing postmarks, mailed-is-filed rules, and what FedEx personnel mark on airbills. This doesn’t help Tara E., although practitioners and petitioners would do well to read and heed.

Now maybe Tax Court’s video about starting a case makes it clear that Tax Court isn’t IRS, but I don’t think so. I would propose a statement front and center on Tax Court’s website that Tax Court isn’t the IRS, it’s independent, and anything to do with Tax Court must go to 400 Second Street, NW, nowhere else. List the Magic Mailing Methods. And amend the list to include whatever services these PDS offer.

There follows the usual brush-off.

“Hence, while the Court is sympathetic to petitioner’s situation and understands the unintentional character of the inadvertence here, the serious health issues, and the good faith of petitioner’s efforts, the fundamental nature of the filing deadline precludes the case from going forward. As a Court of limited jurisdiction, the Court is unable to offer any remedy or assistance when a petition is filed late. Rather, the Court is barred from considering in anyway petitioner’s case or the correctness of her claims. Unfortunately, governing law recognizes no reasonable cause or other applicable exception to the statutory deadline.” Order, at pp. 4-5.

Here ends the lesson.

As Harry Golden, raconteur and essayist, put it more than fifty years ago, “The most famous expression among the immigrants on the East Side of New York was ‘A klug zu Columbus’n’ which, freely translated, meant that Columbus should have broken his head before he discovered it (America).  The expression was always used in good humor and often as a term of endearment, as we shall see.”

Mr Golden went on to describe Columbus as a folk-hero, a kind of mythic figure both praised and blamed, but ultimately the source of good-humored comment.

Howbeit, my readers, descendants of immigrants as we all are, whether our several ancestors crossed the Bering Strait coming from the Olduvai Gorge, or from the steppes of Central Asia, or even across the Atlantic or Pacific, I note that Tax Court is closed today, so I can bring y’all neither entertainment nor enlightenment.

Enjoy a day off, whether it be for you Indigenous Peoples’ Day or Columbus Day. And anyway, have a klug zu Columbus’n.

No, not the Central Park delight of my childrens’ earliest years, nor yet the Johnson-Ellicott-Binghamton collection, but rather the carousel stopped by Judge Lauber in my blogpost “Carousel”, 6/9/14.

Tax Court has issued a press release this date closing the carousel Jeff Holden wanted to get on to avoid testifying about Project Goldcrest in Amazon.Com, Inc & Subsidiaries, Docket No. 31197-12. My blogpost aforementioned tells the tale.

Here’s the press release: “The United States Tax Court announced that the hearing to be held in Amazon.Com, Inc. & Subsidiaries v. Commissioner of Internal Revenue, Docket No. 31197-12, during a Special Session of the Court in Washington, D.C., beginning at 1:00 p.m. on October 24, 2014, will be closed to the public. The Court will hear the testimony of one of petitioner’s witnesses who will be unavailable during the trial of the case scheduled to commence in Seattle, Washington, on November 3, 2014.”

I wonder what Jeff, or whoever the mystery witness may be, has to say that cannot be heard by all the world. And why Judge Lauber, or whichever power-that-be, thought it necessary to put out a press release.

The words of the late great Dr. Eric Berne echo through the ongoing saga of Mica Ringo, Docket No. 29562-12W. Mica’s and IRS’s dilemma continues to befuddle the parties, Tax Court and, last and certainly least, your most humble and obed’t servant. See my blogpost “Oh, Those Letters!”, 10/6/14.

IRS did make a determination on Mica’s Form 211, and Mica timely petitioned, but then IRS said “whoops, got it wrong, ignore previous transmission”, and moved to dismiss for want of jurisdiction. Judge Colvin said “tough table tennis, troops, it’s a determination and a timely petition and we got jurisdiction.”

Ms. Jennifer Cordaro over at CCH got some copy out of me on the subject, but I carefully refrained from giving legal advice either to Mica or IRS about what to do when they were in the ring but didn’t want to fight…yet.

And I’ll still refrain, but they have to do something, because Judge Colvin wants to push them to trial or settlement…even when they haven’t decided that they have a case or controversy, or anything to settle.

Here’s Judge Colvin: “ORDERED that the parties shall, by November 30, 2014, file a status report on this case, including actions needed to prepare this case for trial or to consider the possibility of settlement.” Mica Ringo, Docket No. 29562-12W, filed 10/9/14.

I’ll still refrain from giving legal advice to either party, but I suggest a conference call with Judge Colvin might be a good idea.