In Uncategorized on 06/05/2015 at 16:54

When I was a young man (and had, contrary to the late great Pete Seeger, been kissed), there were old-school judges, men (sorry ladies, this was in the Bad Old Days) who dragged into chambers and robing rooms recalcitrant litigants and badgered settlements out of them.

We called it “banging heads.”

And it saved a ton of time, money, vexation and effort, which otherwise would be wasted trying a case before a somnolent jury whose principal concerns were lunch and getting out of there.

Alas, Tax Court doesn’t do that.

Telling the sorry tale is The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Inveterate, Implacable, Irrefragable, Illustrious, Incomparable, Indefatigable Foe of the Partitive Genitive, and Old China Hand, His Honor Judge Mark V. Holmes.

Here’s the long and short (mostly short) of it, Kumar Rajagopalan & Susamma Kumar, et al., Docket No. 21394-11, filed 6/5/15, a designated hitter, no less.

Kum and Sus and two of their buddies are looking at a 40% substantial undervaluation chop, but that’s not the issue I’m focusing on here.

On background, “…petitioners moved in limine for an order to ‘mandate enforcement of the parties’ prior stipulations that the only issues remaining for trial are (1) valuation and (2) penalties; and further direct the parties to engage in good faith settlement discussions in accordance with the Court’s prior instructions.’” Order, at p. 1.

OK, play nice.

Except Tax Court judges can’t make litigants do that.

“One problem with this is that our cases that wax rhapsodic on the importance of stipulations to the Court’s practice all involve actual stipulations — statements that both parties agree to as true for the purpose of deciding a case and have been properly submitted to the Court. See Tax Court Rule 91(b)-(c) (stipulations must be signed and filed with the Court). Proposed stipulations are not actual stipulations, and the Court can’t enforce them by pretending they are.” Order, at p. 1.

OK so far; if the stips Kum and Sus want enforced aren’t properly-filed stips, but wishlists, there’s nothing Judge Holmes can do about that.

“The more serious point that the Court thinks petitioners are trying to raise is unreasonable behavior by respondent in not settling these cases. The Court doesn’t force parties to settle; it may impose a sanction if a party litigates unreasonably, see §6673, or it may award costs and fees if the government loses and its position was not substantially justified, see § 7430. But now, before there is a prevailing party, such actions would be premature.” Order, at p. 1.

Maybe I’m an old State-court fogey; maybe I’m too much an in-the-trenches, old-time solo practitioner; perhaps I lack the refinement of the corner office in the glass-and-steel highrise overlooking the park, and the ineffable bliss of Savile Row three-piece suits and spit-shined Bruno Maglis. And however many Martini lunches my aging liver can handle.

But I don’t get it.

If a baserunner knows the outfielder won’t throw, why not score from first base on a blooper?




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