In Uncategorized on 09/01/2017 at 15:36

The Separation Variation

The rounders’ flavor du jour is constantly changing. Unlike Mr Heinz and his 57 (count ‘em, 57) varieties of pickle, the rounders keep coming up with ever newer frivols, foists, and folderol, which succeed one another like the precession of the equinoxes.

Today’s gimmick is tomorrow’s commonplace.

The newest is the Battat Recusal Gambit, today’s variant being played by The Kleinfeld Law Firm LLP, Denis Kleinfeld, Tax Matters Partner, Docket No. 1212-17, filed 9/1/17.

I’m sure Ch J L Paige (“Iron Fist”) Marvel, upon whose desk this fell when the daily Tax Court piñata burst, was as anxious as I to get away from the wordprocessor and head for a three-day weekend.

All y’all will recall the Battat Recusal Gambit. No? Then dig my blogpost “Necessity Knows No Law,” 2/6/17.

OK, now we’re that much closer to the first cold brew of the weekend.

Denis tries the gambit, and gets smacked.

“However, in a recent Opinion of this Court, we held that presidential authority to remove Tax Court judges for cause under section 7443(f) does not violate the Constitution’s separation of powers and that we need not recuse ourselves. Battat v. Commissioner, 148 T.C. No. 2 (Feb. 2, 2017); accord Kuretski v. Commissioner, 755 F.3d 929 (D.C. Cir. 2014), aff’g T.C. Memo. 2012-262, cert. denied, 135 S. Ct. 2309 (2015); see also Thompson v. Commissioner 148 T.C. No. 3 (slip op. at 4-5) (Feb. 2, 2017), on appeal (9th Cir., Mar. 28, 2017).” Order, at p.1, footnote omitted, but it says Battat appealed to 11th Cir. back in April.

Of course, the real question is that if the entire Tax Court bench is tainted, why did you petition there? Where in the Constitution is it written that taxpayers get a prepayment forum? It’s our old chum “legislative grace” that created the old Bureau of Tax Appeals and its successor, which all y’all claim is too homogenized with the Executive Branch for your taste.

You can always pay and claim a refund, and if denied or delayed, sue in USDC or USCFC, which is as separated from the despised and rejected Executive Branch as you can get.

I make this point in this case because lawyers should know better. I’ll give the self-representeds, who are led astray and have turned every one to his own way, a break before I suggest that the iniquity of all be laid upon them.


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