In Uncategorized on 01/12/2016 at 16:37

In the days of my youth, the old Saturday Evening Post ran an ad for something called Hastings Piston Rings that read “Tough, but oh so gentle.”

I’d like to apply that epithet to Judge Laro. Surely Judge Laro maintains a no-nonsense persona on the bench, and is no friend of dodgers, protesters, stallers or assorted wiseacres.

But when mercy is called for, Judge Laro is the man.

For an instance where mercy asked for is denied, see my blogpost “Asperged and Disabled,” 10/19/15. But when the Good Guy needs to shine from the bench, Judge Laro comes through. For a lawyer, yet.

In witness whereof, check out John A. Tomassetti & Cathy C. Tomassetti, Docket No. 12746-11, filed 1/12/16.

John and Cathy were collateral damage in the blowing up of the Sterling Benefit Plan, which certainly wasn’t sterling, nor did it benefit anyone but the promoters of that dodge. For more about this penguin, see my blogpost “Splitsville,” 7/14/15.

But John and Cathy weren’t alone. They and their fellows amongst the blown-up were invited to a Rule 155 beancount. Now unscrambling this particular omelet took more than the usual unsubstantiated Sched A or Sched C, and John and Cathy’s counsel had a squad of blown-up scramblers to unravel.

Apparently counsel moved for more time to submit computations for some, but not all, of the blown-up scramblers. And got it. I told you Judge Laro was a decent guy.

But counsel left John and Cathy twisting slowly in the cliché. So IRS moves to enter their undisputed numbers, and Judge Laro does.

Finding out that IRS’ numbers went in without a fight, John and Cathy ask for a Rule 162 vacate or revise. IRS claims they showed no grounds why the decision should be vacated, revised or anything else.

“Rule 162 does not provide a standard by which to evaluate a motion to vacate a decision. See Rule 162; Brewer v. Commissioner, T.C. Memo. 2005-10. Accordingly, this Court refers to the Federal Rules of Civil Procedure for guidance in this matter, specifically, to Rule 60 of the Federal Rules of Civil Procedure. Rule 1(b); Cinema ’84 v. Commissioner, 122 T.C. 264, 267-268 (2004), afd, 412 F.3d 366 (2d Cir. 2005); Seiffert v. Commissioner, T.C. Memo. 2014-61, at *7. Motions to vacate or revise our decision are generally not granted absent a showing of unusual circumstance or substantial error, such as mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, or other reasons justifying relief. See Fed. R. Civ. P. 60(b); Seiffert v. Commissioner, T.C. Memo. 2014-61, at *7.

“In this case, petitioners’ counsel handled several cases consolidated for the purpose of briefing and opinion. In some of these cases, the counsel filed a motion to extend the time to submit computations under Rule 155, but in others, including this case, failed to do the same. After reviewing the parties’ filings, we attribute petitioners’ counsel failure to comply with the deadline for submitting computations under Rule 155 to inadvertent mistake or excusable neglect. These reasons are sufficient to support petitioners’ motion to vacate the decision entered in this case. See Fed. R. Civ. P. 60(b); Seiffert v. Commissioner, T.C. Memo. 2014-61, at *7. Doing so would better serve the interests of justice.” Order, at pp. 1-2.

I left in the citations so y’all could drag and drop the language for your next Rule 162. And hopefully you get before Judge Laro.

Now for another goodie for lawyers, but this one is a cautionary tale. I direct this one to you calendar callers, for whose diligent pro bono efforts I have high praise. But beware lest your good nature be abused.

Cast an eyeball on Brent Edward Crummey and Cheryl Battista Crummey, 2016 T. C. Memo. 9, filed 1/12/16. Brent is a bad dude, having gone down on six (count ‘em, six) counts of filing false claims for tax refunds based on his convoluted but frivolous trust scheme.

Now for the trial on the 75% fraud chops, IRS lets Cheryl Battista off the fraud hook, but they want heavy chops on Brent, a Symantec software engineer who should know better.

I won’t go through Judge Cohen’s “somber reasoning and copious citation of precedent” to detoxify Brent’s arguments, which he drops at the last pre-trial minute, apparently realizing that the cliché is up.

No, here’s the point, calendar callers. “At the time of trial on October 26, 2015, petitioner abandoned his positions and testified that he had taken the positions in good faith. (He apparently did so after consulting with an attorney who volunteered to counsel unrepresented taxpayers without charge at the time of Tax Court calendar call and before trial.)” 2016 T. C. Memo. 9, at pp. 6-7.

Good job, volunteer, but beware. Some of these dodgers and protesters will try to hide behind your well-intentioned counsel to exculpate themselves from punishment for their well-planned and nefarious schemes. Don’t leave your skepticism at the courthouse door.


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