In Uncategorized on 11/14/2014 at 17:43

Just as the Tax Court website and its riches “go gentle into that good night” for the weekend, leaving me to sulk tomorrow when Cornell gets hammered by Columbia at the northernmost tip of the island whereon I reside, but march noisily down Fifth Avenue as I marched quietly on Tuesday up that same, I found a Judge Gale rebuke to a dilatory litigator wherewith to brighten the aforesaid long day’s journey into cliché.

Here’s the story of CF Headquarters Corporation, Docket No. 22321-12, filed 11/14/14. Again Judge Gale is reticent about designating his orders, leaving this poor blogger once more to scrabble round the website “as the dusk gathers in”, to find fodder for my patient RSS feeders.

Howbeit, CF’s counsel has a real need, in fact a desperate need, for some of IRS’s background papers on Notice 2003-18, 2003-1 C.B. 699, or the legal conclusions therein. So they move to compel.

No biggie, right?

Except CF’s counsel asked for the stuff more than a year ago, and IRS handed in a privilege log covering same forthwith.

“Nonetheless, although petitioner now contends that Notice 2003-18 ‘is central to respondent’s case’ and that petitioner ‘has made a clear showing of need’, petitioner waited approximately 14.5 months after learning respondent’s position before filing its Motion to Compel. Indeed, petitioner’s Motion to Compel was filed on October 24, 2014–the last day such a motion could be filed unless otherwise authorized by the Court. See Rule 70(a)(2), Tax Court Rules of Practice and Procedure. Petitioner also made no mention of any such outstanding discovery dispute in the Joint Status Report it filed on October 3, 2014.” Order, at pp. 1-2.

“Remarkably, petitioner offers no explanation for this delay. In the circumstances, given the volume of documents in dispute, petitioner’s eleventh-hour filing appears at best dilatory and at worst a deliberate attempt to thwart the orderly and expeditious resolution of this case.” Order, at p. 2.

Anyway, some documents IRS erroneously claimed were privileged were handed over.

And just because IRS will rely on statutes and regs cited in the Notice doesn’t mean that IRS is relying on the Notice. And as IRS relies on the Notice for penalties, it’s the published Notice that counts, not what documents underlay the same.

It’s now too late for me to find out the name of CF’s counsel, even if I were going to mention it here. But I won’t. Sufficient unto the day is the cliché.

  1. Footnote to the foregoing: Cornell actually snatched victory from the jaws of cliché, assisted by some Columbia moves that left us scratching our heads. How can you let the playclock run out when you’re going for it on 4th down at midfield? If this was some deeply-laid strategic gimmick, it fooled us. And blowing the snap on a PAT, thereby giving up a safety which furnished two-thirds of Cornell’s winning margin, is hardly the stuff that Empire State Bowls are made of. Still, Cornell’s play wasn’t, to put it charitably, of Hall-of-Fame quality either. But the Big Red marching band is as good as it ever was. Isn’t it sad for people who attended Princeton, Harvard, Yale or Columbia never to have had a great marching band?


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