In Uncategorized on 04/17/2017 at 20:16

I’ve often commended Judge David Gustafson. He’ll try your case in the slammer where you are; he’ll help you draft your brief, and do everything but bring coffee and doughnuts to your trial.

But don’t ignore him. He will get more than a trifle testy when he suspects counsel of straying from the paths of righteousness.

There are six (count ‘em, six) designated hitters, all of equal tenor, of which I have chosen Kenneth Bailey, Docket No. 21003-16L, filed 4/17/17, as my case-in-point.

Ken and his fellow petitioners are all facing NITLs for some TFRPs, IRS moved for summary J in all cases, Ken and his fellows said nothing, and Judge David Gustafson awards IRS summary J.

No biggie, right? Ordinary grist that comes to the Tax Court mill every day.

But the difference is that all six have the same attorney, whom I will call Mac.

“We will grant the Commissioner’s motion for summary judgment, but we will not yet enter decision. Instead, we will order petitioner’s counsel to appear at the calendar call on June 12, 2017, and show cause why sanctions should not be entered under section 6672(a)(2) and why counsel should not be referred to the Court’s Committee on Admissions, Ethics, and Discipline.” Order, at pp. 1-2.

“Counsel’s non-responses have required the Commissioner to file status reports and have required the Court to determine in each case without petitioners’ counsel’s input whether a grant of summary judgment is ‘appropriate’, Rule 121(d). We cannot tell whether this indicates that counsel is unaware of or is ignoring the Court’s orders. We cannot tell whether counsel knew the cases had no merit but filed petitions to collude in an attempt to use the CDP proceedings to delay collection. We cannot tell whether counsel determined after filing the petition that the cases have no merit and therefore did not bother to comply with the Court’ s order. We cannot tell the extent to which counsel’s non-compliance with the Court’s orders prejudices his own clients and/or the Commissioner.” Order, at p. 2.

I’m not judging which, if any, of these possibilities is correct, or even is close to correct. I firmly support our State Bar’s Lawyer Assistance Program for lawyers overwhelmed by the enormous stresses of the profession I love. If Mac is in such case, I hope his State’s Bar Association, or local association, has a similar program. If so, he should avail himself thereof.

But if not, he did not do well to peeve Judge David Gustafson. Obliging as that jurist is, there is a limit.


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