In Uncategorized on 11/02/2015 at 19:49

That Obliging Jurist and true friend of the hard-laboring blogger, Judge David Gustafson, may or may not find that Holman M. Fulbright, Docket No. 379-15L, filed 11/2/15, though not currently compliant with all filings, may yet attain the limbo of CNC. And, praise be, he does so in a designated hitter.

Holman is out of luck in his quest for an installment agreement. Ya gotta have filed all returns and paid any 1040-ES, 941 and suchlike, before you can pay as you go.

IRS wants summary J that Holman is out on CNC as well. And thereby hangs the cliché.

IRS claims Holman never came clean on the diñero. Holman’s trusty attorney claims he faxed fifty-plus pages of Holman’s monetary life and miracles, and got a fax receipt therefor. IRS ripostes that trusty attorney’s averments are a wee bit dubious, to be charitable.

Judge Gustafson sorts it out. “But in the current summary judgment context, we decline to weigh the evidence or do any more than identify the presence or absence of a genuine dispute of material fact. See Rule 121(b).

“However, Rule 121(d) does require that ‘certified copies of all papers or parts thereof referred to in … a declaration shall be attached thereto or filed therewith.’ This rule would seem to require that the ‘financials’ referred to in counsel’s statement be filed with petitioner’s response, but they were not. We will allow petitioner to cure this defect in a supplemental filing.” Order, at p. 2.

In short, trusty attorney, produce documents and receipt.

Yet another complication arises, but Judge Gustafson is ahead of the problem.

“Petitioner’s counsel’s declaration states that he has changed law firms since the events [in question]. The Court therefore points out that, to the extent (if any) that petitioner needs documents that require the cooperation of that former firm but the firm is not cooperating, petitioner’s remedy would be to compel production of documents by the issuance of a subpoena duces tecum under Rule 147(b), requiring the firm to appear at the calendar call and produce the documents. Failure to employ that remedy would presumably redound to petitioner’s detriment in any dispute about whether petitioner had met his burden of proof (and in any dispute about the appropriateness of a continuance).” Order, at pp. 2-3.

And of course, if the facts are still at issue, get ready for trial.


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