In Uncategorized on 12/17/2015 at 15:38

Striking a jarring note in this season of peace and goodwill, both Judge Chiechi and the IRS unload on petitioners’ counsel.

Judge Chiechi first. IRS wants summary J against Neil S. Schuster, Docket No. 28217-14L, filed 12/17/15, and asks for it December 7, reply due 12/16/15. Neil gets two attorneys on board on December 15, and they ask for 12/26/15 to reply. Judge Chiechi gives them 12/21/15 in a same-day order.

When the lawyers ask for reconsideration, and more time, they get a judicial tongue-lashing.

“Any time-related burden on newly-retained counsel that is attributable to petitioner’s decision to retain counsel one week after December 7, 2015, the date on which respondent filed a motion for summary judgment and the date on which the Court ordered a response to that motion, is a burden for which petitioner is responsible and for which he shall bear the consequences. In this connection, although petitioner represented in petitioner’s motion for extension of time that he did not receive respondent’s motion until December 14, 2015, the Court sent by Federal Express overnight delivery a courtesy copy of its Order dated December 7, 2015, in which it ordered petitioner to file a response to respondent’s motion on or before December 16, 2015. Petitioner was thus aware on December 8, 2015, that respondent had filed a motion for summary judgment and should have taken the appropriate steps to obtain a copy of it, rather than waiting until December 14, 2015.

“The Court also notes that it does not appreciate the attempt at gamesmanship by petitioner’s counsel in asking for what at first blush appeared to be a request for an extension of time of 10 days, until December 26, 2015, which that counsel knows is a Saturday, when in fact the request is for 12 days because of the operation of Rule 25(a) (2) (B), Tax Court Rules of Practice and Procedure.” Order, at p. 2.

It’s one thing if Schuster and counsel are wiseguys. But a quick docket search discloses no obvious gamesmanship, and Judge Chiechi doesn’t mention frivolity. So how many ordinary people enmeshed in a Tax Court fight for the first time (and another quick docket search shows Neil S. is a first-timer) carry a roster of battle-hardened Tax Court admittees in their Smartphones (or anywhere else)?

And how long does it take an attorney to do a face-to-face intake interview after having reviewed pleadings and papers, and maybe even talked to potential witnesses, and prepare and have client and attorney both sign a detailed retainer agreement (without all of which I won’t take a client)?

A week is fast, even when there are no holidays, religious and otherwise.

May I point out that IRS served its answer on January 16, 2015? IRS had a year to move. There are no discovery motions showing on the docket search, so IRS had twelve months and Neil’s attorneys have seven days?

And no one at Tax Court ever got a date wrong? That Neil S.’s attorneys got the wrong date doesn’t mean they’re playing games, unless there’s some evidence aliunde, like they’ve tried little witticisms before now.

Judge, I understand “The Court wants to be able to decide respondent’s motion for summary judgment, if at all possible, before the parties spend time preparing the pretrial memoranda required by the Court’s standing pretrial order, which are required to be filed by no later than January 25, 2016. The Court also wants to be able to decide respondent’s motion for summary judgment, if at all possible, before the trial session in Baltimore, Maryland, begins on February 8, 2016. That is because if the Court were to decide to deny that motion and a trial were necessary, that trial could take place at that trial session. Any delay, especially given the time of year, will affect the Court’s ability to do so. In this connection, the Court is officially closed on December 24, 2015.”” Order, at pp. 2-3.

OK, Tax Court is closed 12/24/15. But maybe some attorneys will be working that day, even if their offices are officially closed. You can ask my wife and daughters about the days I worked when my office was officially closed.

Judge Chiechi gives counsel until 12/23/15. But unless I’m missing a lot, the suggestion of gameplaying is over the top.

Now for IRS’s little gameplaying, which Judge Wells is too douce to rebuke.

Keith P. Taylor, Docket No. 1641-15, filed 12/17/15. IRS wants to toss Keith’s counsel, hereinafter “Bird,” based on an alleged conflict of interest.

“[Bird] is petitioner’s counsel in the instant case as well as counsel for the Modest Needs Foundation, a tax-exempt organization. Respondent contends that [Bird] is preventing counsel from interviewing the organization’s board members and is placing the organization’s tax-exempt status at risk.” Order, at p. 1.

Judge Wells: “In the instant case, there is no conflict of interest because the Modest Needs Foundation is not a party in any case currently docketed before the Court. Additionally, [Bird] provided the Court with a Conflict of Interest Waiver. Moreover, future loss of tax-exempt status is a mere possibility of subsequent harm which cannot justify disqualifying petitioner’s counsel in this case.

“Regarding respondent’s contention that [Bird] is obstructing discovery, if petitioner has failed to properly respond to discovery requested by respondent, then respondent should file an appropriate motion to compel such response.” Order, at p. 1.

‘Tis the season for cheap shots? I hope not.



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