In Uncategorized on 10/25/2016 at 16:34

Often has a Tax Court Judge or STJ intoned the mantra “This is a court of limited jurisdiction. We can only do what Congress allowed.”

Alas the poor Article I judge, bereft of the extensive powers of her Article III colleagues. I remember the late Justice Antonin Scalia visiting haughty disdain on this “inferior court” established under the authority of Article I, Section 8, from his armchair at the post-cenam chat at Duke University, during the last Tax Court Judicial Conference. BTW, when will we be having the next one?

But sometimes even lowly STJ’s, worthily lamenting their inferiority, take that field marshal’s baton from their knapsacks and look longingly at it, before restoring it to the field pack on their weary shoulders.

Today it’s the turn of STJ Lewis (“footsoldier of Tax Court justice”) Carluzzo.

And it’s the next installment of Faith Lynn Brashear & Hendel N. Thistletop, Docket No. 13189-13, filed 10/26/16, a designated hitter. You remember Faith & Hen, no? What, no? Well, try my blogpost “Got To Be There – Part Deux,” 8/26/16. There, now.

Faith & Hen are still battling with their erstwhile attorney, whom I’ll call DJ. Faith & Hen refuse to pay, DJ wants out, Faith & Hen claim DJ is overcharging them. STJ Lew has an urge to sort it out, but forbears.

“In support of his motion, [DJ] submitted his time sheet/billing statement, which we have carefully reviewed. While we question the amount of time charged for some of the seemingly routine activities, there is insufficient evidence in that statement, or otherwise in the record, to support a finding that excess billings operate to violate the fiduciary duty owed to petitioners to such an extent so as to allow for an order of disgorgement. See Restatement (Third), Law Governing Lawyers, sec. 37. The fee dispute between petitioners and [DJ], should either party continue to pursue it, will have to be resolved in a different forum.” Order, at p. 1.

STJ Lew, how do you have jursidication (thanks, Judge Ashford), to decide the billing issue on papers, much less try the issue or order a disgorgement? If the review is to decide whether to let JP out of the case, what he charges or doesn’t charge is nothing to the point. If he claims Faith & Hen owe, and they don’t pay, unless there’s collusion with intent to stall, toss JP, and let Faith & Hen work out their salvation. The billing issue is nothing to do with the main deficiency, unless the legals are a claimed deduction, and even then you can only allow or disallow them.

The fee dispute should go to State court, where it belongs.

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