Judge David Gustafson shows off another facet of his obliging nature, and even sets it up as a designated hitter (making life easier for the hard-working blogger). It’s Cornelius L. Jones, Docket No. 5166-15L, filed 2/4/16.

This is the usual IRS summary J motion off a CDP. Con claims his household expenses should be based upon two people, although his wife has her own bank account and maybe pays some expenses. But he pays all living expenses.

The SO’s case record says “SO went over form 433-A with poa [power of attorney] and asked tp [taxpayer] what relationship is the person that listed on from [sic] 433-A to the taxpayer. POA indicated she is tps spouse; she is disabled and has her own bank account and pays her own expenses; medical expenses. She doesn’t receive much and indicated tp pays all the household monthly living expenses. And expenses listed on form 433-A page 4.” Order, at pp. 2-3.

Leaving aside my standard nomenclatorial quibble, that a Power of Attorney is a piece of paper, and the party designated in that paper to act for the Principal is the Agent, the SO bounces Con’s installment proposal, treating him as single, and Con petitions the resulting NOD.

IRS wants summary J; standard procedure, and I’d try it if I were IRS’ counsel. I’ve said so in previous blogposts.

No go, this time. Judge Gustafson will tell us why.

“Now before us is a motion for summary judgment under Rule 121, as to which our responsibility is not to find facts but rather to determine the presence or absence of a dispute of material fact. As the non-movant, the obligation of petitioner here is only to make an evidentiary showing that raises such a dispute, not necessarily to show evidence that would win that dispute. If he successfully raises a genuine dispute of material fact, then he is entitled to a trial, and the motion for summary judgment would be denied.” Order, at p. 3.

Issue finding, not issue determination, as the textbooks say.

But wait, there’s more, as the midnight telehucksters say.

“While in ruling on a summary judgment motion we indeed determine only the presence or absence of a dispute of material fact, we do so here in a context in which the question is not whether Appeals erred in determining petitioner’s ability to make a monthly payment but instead whether Appeals abused its discretion in so determining…, and we make that ruling only by reference to issues that petitioner raised before Appeals in the CDP hearing….” Order, at p. 4. (Citations omitted)(Emphasis by the Court).

But Con really raised a question about what spouse pays and what Con pays, and whether in fact Con is on his own. And that’s enough to defeat summary J.

Go to trial, IRS.

When I welcomed Judges Ashford and Pugh to the Tax Court bench, I fear I must have curbed their enthusiasm somewhat. For those among you who come late to this potluck, here’s what I said back on 12/22/14, in my blogpost “New Kids On the Block.”

“Now they can start wading through protester jive, Section 152 relativity, professional and amateur dodgers, nonfilers, late filers and rounders that we lonely bloggers confront every day, although our credentials are much less impressive.”

I ought to have added to the list assorted gamesters and dilatory discoverers. But today Judge Pugh shows us that she knows right well how to deal with the likes of them, in Bay Pacific Networking, Inc. SPARC, Docket No. 21580-14, filed 2/3/16. And no, I don’t know what a SPARC is, either, unless it’s referring to a medical marijuana outlet in San Francisco.

Judge Pugh dropped some helpful hints to IRS and the SPARCers, but they didn’t seem to catch them. So after two months of jilling around the bay, Judge Pugh fires a couple rounds (hi, Judge Holmes) across their collective bows.

“To facilitate informal resolution of the pending discovery disputes, the Court ordered that the parties agree to a list of topics/questions for use in an interview of a representative of petitioner by the IRS. It appears from dueling status reports that in the two months between the… hearing and the…deadline for submission of status reports, little progress has been made.” Order, at p. 1.

So Judge Pugh gets pithy.

“The Court is disappointed in the failure of counsel to cooperate in preparing this case for trial, especially the parties’ inability to communicate. As the parties are unwilling to cooperate on informal discovery (e.g., the proposed interview), we will not pursue any further measures intended to facilitate preparation of this case for trial through informal means. Rather we will direct the parties to our Order… which sets forth specific deadlines for formal discovery, stipulations and other pre-trial matters. The Court admonishes the parties that the failure to cooperate on developing the case for trial will only increase the time and expense of trial for the parties and add to the uncertainty of litigation (for example without stipulations the parties will not know what documents and facts are admitted into evidence until trial). While we urge the parties to work together consistent with this Court’s Rules and precedents, we will not spend judicial resources to assist the parties in preparing this case for trial unless and until the parties demonstrate that time so spent will be well spent.” Order, at p. 1.

And don’t play freeze-the-puck-and-take-the-faceoff.

“We also warn the parties that we will not be extending pre-trial deadlines set forth in our pretrial scheduling order, or the … trial date without good cause. The parties’ failure to cooperate and failure to stipulate do not constitute good cause.” Order, at p. 2.

And just in case y’all weren’t listening, guys: “Lastly, we remind counsel of section 6673(a)(2) of the Internal Revenue Code of 1986, as amended: “Whenever it appears to the Tax Court that any attorney or other person admitted to practice before the Tax Court has multiplied the proceedings in any case unreasonably and vexatiously, the Tax Court may require — (A) that such attorney or other person pay personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct, or (B) if such attorney is appearing on behalf of the Commissioner of Internal Revenue, that the United States pay such excess costs, expenses, and attorneys’ fees in the same manner as such an award by a district court.” Order, at p. 2.

Read and heed, all you dilatory bombardiers.

Broken? Enforced?

There being neither opinion nor designated hitter from The Glass Box on Second Street, I am thrown back on digesting 130 uninteresting orders, be the same more or less as the conveyancers used to say.

But the blogger is put on his/her mettle by such days.

And today, as in recent past, Ch J Michael B. (“Iron Mike”) Thornton manifests his improvisational talents. Case in point: John A. Giantonio, Docket No. 32356-15, filed 2/2/16.

It’s not really about John, but about his trusty CPA, Anthony J. Mascherino. Mr Mascherino files a letter “…on petitioner’s behalf…which Letter the Court will recharacterize as a motion for entry of decision on petitioner’s behalf.” Order, at p. 1.

This provokes from me a massive, Wagnerian “Mein! Was ist das?!”

Letters “on behalf of” petitioners from unadmitted persons, recharacterized as motions, no less?

Of course, if Mr Mascherino is a USTCP, I ask him to accept my deepest apologies, if he is an attorney as well as a CPA, and extreme admiration if he is one who scaled the Olympian heights of the Tax Court Admission Examination. But if either were the case, I wish Ch J Iron Mike had mentioned the fact.

But a quick docket search shows that the Clerk’s Office seems to think John is pro se.

If Mr Mascherino is neither an attorney nor USTCP, nor a corporate officer or a fiduciary (trustee, next friend, executor or administrator), how can his doing any more than putting a letter signed by the petitioner, or by admitted practitioner who has filed a proper Form 7 Entry of Appearance, in an envelope, and properly addressing, affixing postage, and dropping same in a depository maintained by and under the control of the USPS, be acknowledged as petitioner’s act by Tax Court?

How many times have we had it dinned into our heads that powers of attorney are not recognized by Tax Court? And no one not in the Magic Circle can appear in Tax Court on behalf of another.

Talk about “judicial activism”.

But Don’t Wear Out His Patience

 Judge David Gustafson is the humble petitioner’s friend. Like a much Higher Authority, a humble and a contrite heart he does not despise.

Though his spelling may be shaky, don’t presume too far on his good nature. It’s not a good policy.

In witness of the first clause of the above sentence, I proffer the following: “The asserted facts are relevant, discreet, objective, and verifiable or deniable.” Marlene D. Morten, Docket No. 2451-13, filed 2/1/16, a designated hitter, no less.

Judge, the question is not whether the facts are “discreet,” that is, “showing discernment or good judgment in conduct and especially in speech; prudent.” No, the question is whether each admission sought in Interrogatory No. 1 is a separate, independent item, as in “discrete: apart or detached from others; separate, distinct.”

Nobody proofreads these orders.

Howbeit, Marlene is pro se, but she is apparently an attorney, admitted in DC.

IRS wants information about any previously requested admissions to which Marlene didn’t admit. But this is superfluous.

Judge Gustafson: “…with respect to Interrogatory No. 1, the IRS’s motion to compel is denied in part as moot. In view of Ms. Morten’s non-response to the requested admissions, the requested admissions of fact are all deemed admitted as of… the due date of the response, by the operation of Rule 90(c). Consequently, there are no requested admissions that have not been admitted, and the motion to compel is moot as to Interrogatory No. 1….” Order, at p. 2.

Marlene was the beneficiary of three (count ‘em, three) continuances, or what we State-court types call trial adjournments, and she isn’t getting any more.

IRS also wants a witness list from Marlene, and Judge Gustafson says they should get it, so he will compel Marlene to disgorge.

“We do not need, before thus granting the motion in part, to request from Ms. Morten a response to the motion to compel. The interrogatory is manifestly proper and seeks relevant information that Ms. Morten ought to be able to provide, now a full three years after she filed her petition.” Order, at p. 2.

And if Marlene doesn’t?

“If Ms. Morten fails to comply, then the Court would entertain at trial a renewed motion that Ms. Morten be barred from calling witnesses that she had failed to identify in response to Interrogatory No. 2.” Order, at p. 2.

Sounds like Marlene, with the facts deemed admitted and no unidentified witnesses allowed to testify, has nothing left but the Michael Corleone gambit.

Takeaway- Don’t annoy the judge, even one so obliging as Judge David Gustafson.