Attorney-at-Law

HITTING THE SUPERFECTA – PART DEUX

In Uncategorized on 03/16/2016 at 14:50

It’s a teletubby day in Our Nation’s Capitol, with the Metro down and out, so no opinions and I thought no designated hitters from The Glasshouse on Second Street, NW. Wherefore, I turn back to the undigested 150 or so miscellaneous orders redesignating documents, telling people for the third time to check the boxes on the Ownership Disclosure Statement, pay the sixty bucks, get continued or not, to find something wherewith to sate the insatiable appetite of the Internet for “content.”

And who else should come through in the clutch but The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Illimitable, Indomitable, Irrefragable, Illustrious, Indefatigable, Incomparable, Implacable and Ineluctable Foe of the Partitive Genitive, Judge Mark V. Holmes? (Applause).

Return to Mr Zimmerman’s “foggy ruins of time” for just a moment. Check out my blogpost “Hitting the Superfecta,” 3/26/15.

Now you’re ready for Judge Holmes’ discussion about summary J when petitioners can’t try their cases, because they’re resident in The Slammer.

“Prisoners routinely exercise their right to petition Tax Court to challenge notices of deficiency. And, despite the undoubted problems of conducting litigation from behind bars, we do try to develop and resolve cases instead of continuing them until the end of a inmate’s sentence — which of course may never come. See, e.g., Rader v. Commissioner, Docket No. 7952-12S (serial killer serving 10 consecutive life sentences); “BTK Sentenced to 10 Life Terms,” CNN (Aug. 18, 2005), http://www.cnn.com/2005/LAW/08/l8/btk.killings/. Order, at p. 2.

Well, Eugenio Espinoza Martinez, Docket No. 29471-12, filed 3/16/16, isn’t doing that much; he’s only got about ten years before the Lone Star State lets him go. But there are questions about the Schedule C and Schedule A deductions he took prior to going inside.

Ordinarily these are fact questions. But it’s hard to develop facts and try a case from The Belly of the Beast, and Judge Holmes is sympathetic. Eugenio is a trifle over the mark, however.

He won’t stipulate with IRS despite Judge Holmes’ coaxing. Check out my blogpost, supra, for some of Eugenio’s alleged problems. Judge Holmes gives us the story again.

“In sum, the records necessary to decide this case on the merits were either (a) nowhere to be found; (b) waiting for him when he returned to his unit of assignment when he was released from a mental health unit; (c) lost when his mother died; and (d) seized by guards from his cell.” Order, at p. 4.

But getting habeas corpus ad testificandum writs when State and Feds collide is difficult, security and expense issues are real, and Judge Holmes is a man who realizes the need for economy.

So IRS wants summary J, and Judge Holmes gives Eugenio one last chance.

“We are sympathetic to the difficulties of litigating from within a prison, and particularly the lack of resources that Mr. Martinez faces. We will therefore attach a copy of Rule 121 (the rule that governs summary judgment motions), and a copy of the Court’s Q & As on summary judgments for people representing themselves. Because finding a notary for the production of an affidavit is unlikely, we instruct Mr. Martinez that 28 U.S.C. § 1746 allows him to file an unsworn declaration under penalty of perjury in lieu of an affidavit.

“Not every case requires a trial. And if Mr. Martinez would finally state why exactly he claimed the deductions that he claimed, and explain what his schedule C business was, and give in detail his side of the story on each paragraph of the Commissioner’s motion, it may turn out that the Commissioner doesn’t disagree or may agree with him to treat such a statement as his testimony.” Order, at p. 6.

Talk about obliging! Judge Holmes is gaining on Judge David Gustafson in the Obliging Jurist Sweepstakes. Stand by for a photo finish!

But this is the last chance, Eugenio. Tell your tale or lose your case.

Edited to add- Judge Holmes did designate this one. But I got there first.

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