Tax Court aficionados rarely see a Section 7491(a) burden-of-proof shift attempt that succeeds. Even when that rara avis alights at the Glasshouse at 400 Second Street, NW, IRS almost always wins.

The garden variety shift attempt ends with the Judge blowing off the shift, deciding on the preponderance of evidence, and petitioner loses anyway.

But today we have a protester playing the shift, and winning a dependency exemption deduction on account of the cohabitant of his little grass shack in Elele, Hawaii.

The pro se shifter is Steven Arthur Shimanek, 205 T. C. Memo. 165, filed 8/19/15.

Steve starts off claiming that the $31K he earned on the Garden Isle wasn’t taxable because he wasn’t an employee of the US of A. He admits earning the money on brief, but throws in the old protester jive. Of course, Judge Swift blows this off without even citing Cain v. Com’r.

Steven Arthur has another string to his bow. He claims IRS disallowed his dependency exemption deduction for his commonlaw spouse, Ms. Aleta T. J. Napoleone. He claims Ms. Aleta T. J. lived with him more than half the year at issue, had gross income less than $3500 that year, and that Steven Arthur himself provided more than half of Ms. Aleta T. J.’s support.

Judge Swift likes Section 152(d)(1)(A)-(C), (2)(H). And IRS doesn’t play the Section 152(f)(3) “violation of local law” gambit, although maybe that’s not a winner in The Aloha State, even if, as I am told but do not guarantee or warrant, The Aloha State doesn’t recognize commonlaw marriage.

After all, Steven Arthur wanders around. When this case was tried he was in American Samoa; maybe he found Ms. Aleta T. J. in a state where commonlaw marriages are recognized before arriving on the Garden Isle (and I can attest from personal knowledge that it is beautiful).

Howbeit, IRS claims Steven Arthur has no evidence of his assertions re: Ms. Aleta T. J.

“In support of his entitlement to a dependency exemption deduction for Ms. Napoleone, petitioner has produced and respondent has stipulated into evidence a document entitled ‘Affidavit of Dependency’ signed by Ms. Napoleone in which she states that during [year at issue] she lived in petitioner’s home, she had gross income of less than $3,500, and petitioner provided more than half of her support.

“Respondent notes that under Rule 143(c) ‘Ex parte affidavits or declarations * * * do not constitute evidence.’ However, in the preamble to the stipulation relating to the above document, respondent expressly waives all evidentiary objections relating thereto except relevancy and materiality. Accordingly, Ms. Napoleone’s statement will be considered as evidence in support of the claimed dependency exemption deduction.” 2015 T. C. Memo. 165, at p. 5.

So Steven Arthur has jumped the Section 7491(a) hedge by providing “credible evidence” of his assertion. Ms. Aleta T. J.’s ex parte affidavit is clearly material and relevant.

Now for the win. IRS faces the Michael Corleone situation.

IRS has no evidence that Ms. Aleta T. J. has told anything but the truth, the whole truth and nothing but the truth.

Having failed to sustain their burden of proof, IRS loses.

Steven Arthur, albeit shifty, has won.

Summer doldrums have their day in Tax Court. We have a T. C. Memo. about a lawyer (and ex-CPA) who claims the capital loss his wife took when she sold securities to buy an annuity should offset the early withdrawal he took. No go, of course. They took the $3K per year writedown for years before.

And our designated hitter is a comedy of errors, petitioner claiming her bankruptcy discharge wiped out the taxes for which IRS filed NFTLs (which it didn’t, as the returns were filed after the bankruptcy petition), but IRS lifted the NFTLs in question years before, so The Judge With a Heart, STJ Armen, tosses the whole show.

So I was stuck with banalities, until there swam into my ken Rhoda B. Cahill, Docket No. 10005-15S, filed 8/18/15.

And I again quote the taxi dispatcher of the Marne, General Joseph Simon Galieni: “Eh bien, voilà au moins qui n’est pas banal!” See my blogpost “Fact-Oid? No, Fraud-Oid,” 2/2/15.

IRS hit Rhoda with a SNOD, but she’d paid the balance due before IRS hit her. IRS agrees she did, and moves to dismiss her petition as moot.

Rhoda agrees, but wants back her sixty bucks.

And Ch J Michael B. (“Iron Mike”) Thornton, perhaps as bored by the summer doldrums as the humble blogger, plays along.

He orders IRS to “… file a response to this Order setting forth respondent’s position as to (1) whether respondent agrees to reimburse petitioner for the filing fee, and (2) whether the Court should issue as part of its decision an order awarding petitioner litigation costs in the amount of $60.00 pursuant to I.R.C. section 7430.” Order, at p. 1.

Now if IRS caved before trial Rhoda is probably out of luck, but they’ll spend far more than sixty bucks in time and taxpayer money fighting Rhoda.

Whipsaw and Reverse Whipsaw

No, not a pun on the 1958 William Gibson play about a seesaw (which I saw on Broadway with the second-string cast, Fonda and Bancroft having departed), nor yet the 1962 Mitchum-MacLaine variation (which I did not see, then or now), but rather two opinions out of Tax Court today, showing how the law tilts, sometimes.

A whipsaw is when two (or maybe more) people might owe tax, and IRS wants to grab them all, but IRS can only collect once.

First up, the reverse whipsaw, which will be explained infra, as my Hanger-Ten-Gibson-drinking colleagues would say.

Esther B. Crabtree, 2015 T. C. Memo. 163, filed 8/17/15. Esther cast off all lines from Dr. Anthony Girard, effectuating same by means of an “informally drafted” (Judge Lauber’s words) divorce agreement, wherein appears the following: ““Dr. Girard will continue to tender unallocated alimony/child support in the monthly sum of $5,232.00 for a continued 8 year period with the provision as long as Mrs. Girard should not remarry or cohabitate.” 2015 T. C. Memo. 163, at p. 3.

“Informally” is right. Start with unallocated, although Judge Lauber doesn’t have to go there. Child support isn’t deductible and isn’t income to recipient, but alimony is and is. So which is it? State law supplies the answer, and State law is all over the place. Your answer and mileage may well vary.

Eschewing that particular sandtrap, Judge Lauber goes off on dear old Section 71(b)(1)(D). What happens if Dr Anthony or Esther B. checks out before the continued 8 year period runs out?

You know the drill. Check State law, but Tax Court doesn’t get Talmudic or Thomistical; if it isn’t plain, read the agreement and decide.

Well, the Delaware divorce decree is unhelpful. Although the Delaware Court stamped the agreement, “(T)he Divorce Agreement was a voluntary alimony agreement without a judicial determination. Although it was stamped as an ‘order’ of the Family Court, that order explicitly states that it was entered ‘[w]ithout a hearing, without passing upon the substance, form, and/or fairness of the agreement, and without knowledge by the Court of the facts and circumstances concerning the negotiations of the parties.’” 2015 T. C. Memo. 163, at p. 7.

Delaware does have a provision for these informal agreements that says “(U)nless otherwise agreed by the parties in writing and expressly provided in the decree, the obligation to pay future alimony is terminated upon the death of either party or the remarriage of the party receiving alimony.” 2015 T. C. Memo. 163, at p. 8.

Delaware doesn’t say how two splitters must “otherwise agree,” but Judge Lauber finds a California case (and where would we be without LaLa Land law?) that requires “specific and express” agreement in writing.

So finding Delaware ambiguous (and any lawyer who can’t find an ambiguity in anything should turn in her/his license and consider a career at Amazon), Judge Lauber reverts to good old-time contract law, dusts off contra proferentem, and finds that, assuming without saying so that Dr Anthony did the informal drafting, if Dr Anthony or Esther B meant his death or Esther B’s to terminate the payments, they could have said so, but didn’t.

So the payments to Esther B aren’t alimony, and therefore not income to her.

“OK,” you’ll say, “you blogged the Section 71(b)(1)(D) death knell at least five (count ‘em, five) times before. We got the message. So whassup wit’ dis?”

Well, the year at issue is 2010, and if Dr Anthony filed timely and took the alimony deduction (and as we’re talking about $62K, I’ll bet he did), unless IRS hit Dr Anthony with a timely SNOD, it’s a closed year now.

So IRS can’t hit up Dr Anthony or Esther B. Reverse whipsaw.

Next, forward whipsaw.

Ethel Miriam Putnam, 2015 T. C. Memo. 160, filed 8/17/15, never bothered filing 1040s since 1989. She was also good at protester/defier stuff, but Judge Ruwe, patient to the last, finally wearied of Ethel Miriam’s disregard of his orders and threatened sanctions, and nails her for the whole enchilada. Plus nonfiling, non-estimateds, and the 75% fraud chops.

However, Ethel Miriam and hubby Mr. Putnam (nameless here forevermore) played put-and-take with bank accounts and dummy entities. IRS hit Mr. Putnam with a SNOD for the same amounts, but he didn’t petition.

Notwithstanding anything to the contrary elsewhere set forth herein, or at variance with the foregoing, IRS can’t figure out whether to nail Ethel Miriam or Nameless Putnam for all or part.

This is the forward whipsaw. Judge Ruwe expatiates: “Although Mr. Putnam did not file a petition in this Court, he is not precluded from paying the determined amounts and filing an administrative claim for refund with the IRS. Once the IRS acts upon the administrative refund claim (or after six months pass from the date of filing) Mr. Putnam can file a refund suit in the appropriate District Court or in the U.S. Court of Federal Claims. Thus, respondent’s [IRS] whipsaw position protects the public fisc in the event that Mr. Putnam prevails in a refund suit by establishing that the income at issue belongs to petitioner. In situations such as this the Commissioner is entitled to defend against inconsistent results by determining in separate notices of deficiency that two parties are liable for the same deficiency.” 2015 T. C. Memo. 160, at pp. 25-26. (Citations omitted).

IRS hastens to add, in the style of the late great Conrad Veidt, “we haf vays of protecting against dupple collection.”

“Internal Revenue Manual pt. 5.20.6.1.3(1) (Sept. 21, 2005) provides that ‘related case(s) should be controlled by a single revenue officer to monitor payments and prevent over-collection of the liability.’ If more than one revenue officer is assigned to the cases because of the localities of the taxpayers, the revenue officers are to closely coordinate their collection efforts to ensure that the liability is collected only once. Id. Therefore, the IRS has safeguards in place to ensure that a whipsaw assessment against both petitioner and Mr. Putnam will not ultimately result in collecting tax from two separate individual taxpayers on the same income.” 2015 T. C. Memo. 160, at pp. 26-27.

I’m sure Ethel Miriam is just thrilled to bits.

And Undesignated As Well

On a summer Friday, with a couple of cold Ourobouros just two hours away, l wish Judge Laro would designate his orders. That would save me from plowing through six (count ‘em, six) pages of “pay the $60,” “file a status report,” and “give me a copy of the SNOD,” which comprise the bulk of Tax Court orders.

By the way, an Ourobouro has no relation to Eric R. Eddison’s 1922 fantasy novel about a worm. Rather, this is a delightful concoction, a piña colada made with Ypioca Ouro cachaça, “aged for 2 years in Brazilian Balsamo barrels, acquiring a distinctive flavour, bouquet and golden colour”. Try it, you’ll like it. And after two of them, you’ll like it even if you didn’t to begin with.

Back to taxes.

Judge Laro has a bushelbasketful of motions in limine amongst the battling experts in Exelon Corporation, As Successor By Merger To Unicom Corporation And Subsidiaries, et al., Docket No. 29183-13, filed 8/14/15. There’s about a dozen more of such motions, but I chose this one because it seemed the most relevant.

The joust concerns nonlawyer experts discussing clauses in contracts.

Judges get testy when “experts” try to interpret the law.

“Petitioners move to exclude the respective paragraphs and associated footnotes and citations therein, from these reports on the grounds that respondent’s expert, Professor X, interpreted contractual provisions as a basis for his opinion that the leases pose a risk of loss to petitioners. Petitioners argue that if this Court does not permit petitioners’ expert to interpret contract provisions as a basis for his opinion that the leases pose a risk of loss to petitioners, this Court should not permit respondent’s experts to interpret contract provisions as a basis for their opinions that the leases pose no risk of loss to petitioners. Petitioners do not object to experts applying their understanding of contractual agreements to form their opinions.” Order, at p. 2. (Name omitted).

How interpreting differs from applying one’s understanding I fail to understand, but Judge Laro does.

“Opinions on law are superfluous and inadmissible, since the court can determine the law equally as well. The Court can exclude an expert’s testimony and report where such expert and report make legal opinions as to the meaning of contractual terms at issue which they believe governs a party’s conduct. Expert opinions, however, that are tangentially based on the expert’s understanding of the contract may be permitted.” Order, at p. 4. (Citations omitted, but save them for your next memo of law).

And Judge Laro is satisfied that all the expert reports and testimony are off on a sufficient tangent, so he’ll let in their understanding of what the contract says, as it impacts their expertise.

If face-offs about expert testimony are your thing, there’s good reading today. If not, try an Ourobouro.

No, this is not about landing your aircraft. I’ve never done that and don’t know how. This is about an OIC based on Effective Tax Administration, hereinafter referred to as “ETA.”

Writing the checklist is Judge Kerrigan, now warming up for the big Eaton Corporation and Subsidiaries trial, eventually coming to a blog near you maybe so.

The case is Lynn Edward York and Cynthia Lee York, 2015 T. C. Memo. 159, filed 8/13/15.

The Yorks want an OIC based on ETA. They’re long-haul truckers who filed for five tax years but didn’t pay all that was due, so they’re about $27K in the hole.

The SO sent the Yorks a letter setting up a teleconference, but the Yorks claimed that didn’t understand that was the purpose of the letter, so they skipped the teleconference.

“The letter explains clearly the purpose of the call and requests information from petitioners. A settlement officer has the discretion to decide when to end the administrative CDP proceedings where requested information and/or completed forms are not provided to her. See sec. 301.6330-1(e)(3), Q&A-E9, Proced. & Admin. Regs. It was not an abuse of discretion for the settlement officer to recommend the notice of determination be sustained as a result of petitioners’ failure to provide the requested information in a reasonable time.” 2015 T. C. Memo. 159, at p. 7. (Citation omitted).

OK, so the SO can kick the CDP. We know all that. But how about ETA?

“The Secretary may compromise a liability on the ground of effective tax administration when: (1) collection of the full liability will create economic hardship or (2) exceptional circumstances exist such that the collection of the full liability would undermine public confidence that the tax laws are fairly and equitably administered. Speltz v. Commissioner, 124 T.C. 165, 172-174 (2005), aff’d, 454 F.3d 782 (8th Cir. 2006); sec. 301.7122-1(b)(3), Proced. & Admin. Regs.” 2015 T. C. Memo. 159, at p. 8.

For economic hardship, look at long-term illness or disability, obligation to care for dependents, or assets that cannot be used to secure loans, or, if sold, would leave petitioner unable to meet basic living expenses (per IRS guidelines).

The Yorks strike out on all three economic tests, on their own numbers.

As for special circumstances, they don’t allege any, but Judge Kerrigan will give us some examples anyway.

“The Secretary may enter into a compromise to promote effective tax administration where compelling public policy or equity considerations identified by the taxpayer provide a sufficient basis for compromising the liability. A compromise will be justified only where, because of exceptional circumstances, collection of the full liability would undermine public confidence that the tax laws are being administered in a fair and equitable manner. A taxpayer proposing a compromise on the basis of effective tax administration will be expected to demonstrate circumstances that justify a compromise even though a similarly situated taxpayer may have paid his liability in full. Examples of cases where a compromise is allowed for purposes of public policy and equity include: (1) a taxpayer who was hospitalized regularly for a number of years and was unable to manage his financial affairs incurs significant tax liabilities, penalties, and interest and (2) a taxpayer learns at audit that he received erroneous advice from the Internal Revenue Service and, as a result, is facing additional taxes, penalties, and additions to tax.” 2015 T. C. Memo. 159, at pp. 9-10. (Citations omitted).

For more about ETA, see my blogpost “Leftovers,” 3/19/14.

I won’t cite here to my numerous blogposts engendered by the Supremes’ decisions in Chenery I and Chenery II. The agency’s stated rationale is the only thing on the table in an abuse-of-discretion review, and the administrative record is “all ye know on earth and all ye need to know,” as a much better writer than I put it.

But what happens when a CDP abuse-of-discretion gets bounced back to Appeals because IRS says it didn’t give petitioner the documents he asked for and failed to confirm he received the Letter 1085 (DO) asserting his unpaid FICA/FUTA?

Well, you can ask Michael E. Lunnon, or better yet, read Judge Marvel’s opinion in 2015 T. C. Memo. 156, filed 8/12/15.

IRS sent Mike a Letter 1058(DO) demanding the FICA/FUTA based on SFRs. The letter was signed for by one Cameron Curley, supposedly an employee of Mike’s at his UPS Store.

Mike never responded to that, but did respond to the Letter 1058 NITL, and got a hearing. Mike supplied frivolity but no information contradicting the SFRs or supporting his request for collection alternatives.

After the NOD, and after Mike’s timely petition, IRS subpoenaed more of Mike’s bank records in preparation for trial. Then IRS moved to remand on the above-stated grounds, and Tax Court granted the motion.

So Mike gets what might be another hearing, or might be a continuation of the first hearing. And claims IRS can’t rely on the later-acquired bank records, as this would violate Chenery.

Judge Marvel: “…sections 6320(b)(2) and 6330(b)(2) provide that a taxpayer is entitled to only one hearing with respect to either an NFTL or a proposed levy, respectively, for the year related to the unpaid liability. A hearing on remand is a supplement to the taxpayer’s original section 6320/6330 hearing and provides the parties with the opportunity to complete the initial section 6320/6330 hearing while preserving the taxpayer’s right to receive judicial review of the ultimate administrative determination. The Appeals Office on remand is not constrained by the original administrative record, as often the purpose of remand is to augment a deficient record. The Appeals Office makes a single determination with respect to an NFTL or a proposed levy for a taxable period. When this Court remands a case and the Appeals Office issues a supplemental notice of determination, we review the determination as supplemented.” 2015 T. C. Memo. 156, at pp. 17-18. (Citations and footnotes omitted).

And although the second set of subpoenaed bank records related to other periods, and to Mike’s LLC, they also contained information relevant to Mike and the years at issue.

“We remanded this case in part for the Appeals Office to clarify whether petitioner had a prior opportunity to challenge the underlying liabilities and to explain to petitioner the basis of the underlying assessments. Settlement Officer X appropriately relied on the additional documents to carry out the Court’s remand order and did not violate the Chenery doctrine in doing so. Petitioner may not distort the law to justify his continued refusal to cooperate with respondent or his abdication of the fundamental responsibilities of maintaining records and filing tax returns.” 2015 T. C. Memo. 156, at pp. 18-19. (Name omitted).

Mike never properly raised his liability for the FICA/FUTA at Appeals, so whether or not Cameron Curley was the proper party to get the Letter 1058(DO) is a nonissue.

Takeaway—An old saying, but a true one: protect your record.

But don’t delay. And better still, if you’re going to Tax Court, read the Rules.

Fortunately for counsel in C&G Consultants, Docket No. 8598-14L, filed 8/11/15, Judge Gale puts them right, even though they ask imperfectly.

Counsel moves for reconsideration, claiming Judge Gale mistakenly denied subject matter jurisdiction over their motion for attorneys’ fees and litigation costs.

No, says Judge Gale, you didn’t read the Rules. And Taishoff says “nor did you read my blogpost “Ask Early, Ask Often,” 12/9/13“.

“The Court did not find that it lacked subject matter jurisdiction over petitioner’s motion for litigation costs. As more fully explained below, the Court deemed petitioner’s Motion for Reasonable Litigation or Administrative Costs moot because, under a straightforward application of the Courts’ rules governing claims for litigation costs (Title XXIII of the Tax Court Rules of Practice and Procedure), petitioner had apparently conceded its claim by virtue of executing a stipulated decision that did not provide for such costs.

“The heart of the confusion here stems from petitioner’s counsel’s failure to appreciate that the Court’s Rules governing awards of litigation costs contemplate only a single decision being entered in a case. That single decision must include the award of litigation costs, if any. See Rule 232(f). (‘The Court’s disposition of a motion for reasonable litigation or administrative costs shall be included in the decision entered in the case.’) The requirement that an award of litigation costs be incorporated in a single decision in the case ‘is designed to simplify appeal procedures by incorporating into a single document the Court’s disposition of both the substantive issues in the case and the motion for reasonable litigation or administrative costs.’ Note accompanying amendment to Rule 232(f), 93 T.C. 1021.” Order, at pp. 1-2. (Footnotes omitted.)

But counsel gets lucky, because within six days after it was entered, they moved for reconsideration of the order that denied their litigation costs.

So Judge Gale distinguishes between C&G’s counsel, and the unfortunate Bill and Liz Foote, who got the boot (sorry, guys) from Judge Wherry in my abovecited blogpost.

Judge Gale vacates his decision, treats the parties’ stip of settlement as a stip of settled issues, grants the motion for reconsideration and tosses his previous order, and tells IRS to respond to C&G counsel’s claim for litigation costs.

Takeaway—Quoting from my blogpost above cited: “Read the Rules, guys. If you’re going to practice in Tax Court, or before the IRS, read the Rules.”

Gerald Lee Ridgely, Jr.’s story is also Scott E. Charnas’s story, in 2015 T. C. Memo. 153, filed 8/11/15. Gerald Lee and Scott E. both get paid on contingency, Gerald Lee as a CPA and Scott E. as a PI lawyer. Gerald Lee’s story is found in my blogpost “It’s Contingent? – Great,” 7/17/14.

For you civilians in the audience, “PI” means plaintiff’s personal injury, the wonderful world of torts. Practitioners in that field generally get paid only if they win; if they lose, it’s a long walk home. And cases can go on for years, if there are big bucks in the game.

So Scott’s income is, to say the very least, variable.

So when Scott E. files returns but doesn’t pay, and asks for a collection alternative or three when he gets the NITL, the SO doesn’t consider Scott E.’s variable income stream, although he put it all over his Form 433-A. Scott didn’t put on an attachment telling his contingent tale, and IRS says he should have, but Judge Wells doesn’t care.

Instead of a telephone CDP, Scott and representative showed up at the Appeals office with papers telling his tale. The SO was out sick, but the papers were dropped off and the SO reviewed them. But her notes say nothing about the discrepancy in Scott E.’s year-to-year income or his statement that his income varies year-to-year.

IRS claims the correspondence review does the job. Judge Wells doesn’t think so.

“The question is not whether a correspondence-only hearing is generally legally sufficient. Rather, the question is whether a correspondence-only hearing was sufficient to provide petitioner the fair hearing to which he is entitled pursuant to sections 6330 and 6320. We note that the regulations provide that, if the taxpayer presents ‘relevant, non-frivolous reasons for disagreement’ with the proposed collection action, the taxpayer will ‘ordinarily be offered an opportunity for a face-to-face conference’. Id. It is only if the offer is unsatisfactory to the taxpayer that the taxpayer will be ‘given an opportunity for a hearing by telephone or by correspondence’. Id.” 2015 T. C. Memo. 153, at p. 11.

The Id. is Reg. 301.6330-1(d)(2).

Correspondence-only might fly where the SO considered all of Scott E.’s relevant, non-frivolous reasons for disagreeing with the NFTL and wanting an installment agreement, OIC or CNC.

But the SO didn’t consider Scott’s fluctuating income. And that is both relevant and non-frivolous.

So back to Appeals for Scott E.

I really like this opinion.

As one who has done real estate deals stretching over years on contingency, I can definitely testify under oath that I have not known what my income would be in any year since 1976. And I still don’t know.

Three cases to blog today, none worth a solo performance. If you want to learn how to run a California marijuana shop, a lucrative but risky business, read Judge Goeke’s how-to in Jason R. Beck, 2015 T. C. Memo. 149, filed 8/10/15.

Interestingly, IRS gives up some on cost of goods sold, allowing Jason $750K of what he claims, but not the $600K that DEA seized when they knocked over Jason’s pottery. 2015 T. C. Memo. 149, at p. 3 footnote 3.

And of course Section 280E bars any of Jason’s business deductions. Turns out Ninth Circuit affirmed Judge Kroupa’s turndown of Martin Olive’s drug-induced deductions. See my blogpost “Everybody Must Get Stoned,” 8/3/12; see also Martin Olive v. CIR, No. 13-70510, filed 7/9/15.

Next up, Joshua Pingel, 2015 T. C. Sum. Op. 48, filed 8/10/15, a Section 183 hobbyhorse case noteworthy for Judge Paris’s explanation of what I do.

For the edification of those recently arrived from Mars, Judge Paris states: “’Blog’ is a truncation of the expression ‘Web log’, which is a regularly updated Web site or Web page written in an informal or conversational style and typically run by an individual or small group.” 2015 T. C. Sum. Op. 48, at p. 4, footnote 3.

Thanks, Judge, that sums me up.

Jason wants to write books and blog and be a travel guide, but makes no money, although he roams pretty freely. But one of his blogposts fascinates me, and obviously irks Judge Paris, because that blogpost leaves us hanging.

“While petitioner included details about some of the sites he saw, places he stayed, and food he ate, many of his explanations do not give enough details for a reader to find the specific site, lodgings, or restaurant described. For example in petitioner’s Paris blog entry he states: ‘[W]e hit up The [sic] BEST ice cream in Europe. * * * there are a couple of places that serve it and pricing is much higher at one (the ‘tourist’ one as Jeff put it) than at the other one. We walked past the tourist one, which had a huge crowd and walked down the street about half a block to the other one.’ Petitioner does not give any more details about where in Paris the best ice cream in Europe can be found.” 2015 T. C. Sum. Op. 48, at p. 5.

I can understand Jason wanting to be coy about where the best ice cream in Europe can be found, lest the place be overrun with Tax Court Judges and bloggers, and suffer the fate described by that eminent sage Lawrence Peter Berra: “Nobody goes there any more, it’s too crowded.”

But as Jason spoke of “a couple of places,’ I doubt Judge Holmes will thither bend his joyful footsteps.

Well, until Jason unbosoms, if ever, I’m glad BlueBell is back in business.

Finally, I cannot end this somewhat frivolous summer reading without a serious word from that designated heavy-hitter, STJ Lewis (“A Name Resounding Down the Ages”) Carluzzo, Raymond S. McGaugh, Docket No. 13665-14, filed 8/10/15.

Ray wanted summary J back in May, but like Ol’ Blue Eyes has to change his tune, because his declaration in support thereof leaves out some facts.

So there is now a “”Motion to Withdraw Declaration and to Supplement Motion for Summary Judgment,” which STJ Lew will bounce.

“The recent motion to withdraw and supplement arises because of an evident need to clarify or correct that declaration. The motion recounts revised and expanded facts that are supposedly known to or realized by Mr. McGaugh (not his counsel). Documents are attached to the motion as exhibits.” Order, at p. 1.

So why bounce it?

“However, the motion is signed only by counsel, and is neither sworn nor signed under penalty of perjury. No declaration of Mr. McGaugh was submitted with the motion.” Order, at p. 1.

And even if counsel signed under penalty of perjury, (a) what personal knowledge did counsel have, and (b) if counsel did have personal knowledge, how would counsel respond to a motion to be removed as counsel because of the need for counsel to testify on the trial?

But counsel is not only prepared to speak for Raymond, whom he purportedly represents, but Raymond’s wife Mary is also named in the SNOD. Mary never signed petition, amended petition or anything else. That doesn’t keep counsel from the following:

“At the end of [the year at issue], Petitioner was married. The underlying notice of deficiency issued in Petitioner’s name as well as in the name of his former spouse. Petitioner’s divorce was finalized [next year] and he entered into a marital settlement agreement where he agreed to be responsible for all tax liabilities that arose during the marriage. Although his former spouse did not sign the petition, and is therefore not a party to this petition, she reserves the right to ratify it, if it later becomes necessary to do so, with leave of Court. [Emphasis added.].” Order, at p. 2.

STJ Lew is mildly peeved.

“Counsel for petitioner Raymond S. McGaugh has not filed a notice of appearance on behalf of Mary T. McGaugh, and therefore we cannot assume that he is authorized to speak for her. (Furthermore, we do not address whether Mary T. McGaugh retains at this date any right to ‘ratify’ the petition, nor whether we could have any jurisdiction over her as a petitioner.).” Order, at p. 2.

I’ll spare you STJ Lew’s FRCP 56 and Rule 121 lecture to Ray’s counsel. But do the docket search. When you see counsel’s name, then see my blogpost “You Have To Fulfill the Requirements,” 8/20/13. And while you’re at it, take a quick peek at 142. T. C. 24, 6/24/14.

A Bangladeshi blogger named Niloy Chowdhury was hacked to death by miltants. It was the fourth such murder this year.

If anyone’s beliefs are so fragile that one anonymous man at a computer’s keyboard can damage those beliefs, then they ought seriously to reconsider what they believe–if they are capable of rational thought, which I doubt.

Religious extremism is the most dangerous substance in the world.