In Uncategorized on 10/26/2017 at 15:38

The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Illustrious, Industrious, Irrefragable, Irrefutable, Incontrovertible, Indefatigable, Ineffable and Ineluctable Foe of the Partitive Genitive, Old China Hand and Master Silt Stirrer, Judge Mark V. Holmes, brings an amalgam of practicality and perspicacity to the odd lacunæ lurking in the wrinkled skin of Tax Court Law and Rules of Practice in BCP Trading and Investments, LLC, William T. Esrey Trading Partners, LP, A Partner Other Than The Tax Matters Partner, et al., Docket No. 10200-08, filed 10/26/17.

Yes, this long-running show is about to close. Finally.

I noted the curtain coming down in my blogpost “They Were Warned, They Were Given an Explanation, They Persisted,” 8/9/17.

Well, at Judge Holmes’ suggestion, the parties confabulated post-opinion, and came up with an agreed-upon decision (that’s a “judgment,” to you State courtiers). But there’s a hitch.

Oh, where would we lawyers be if there were no hitches?

This was a TEFRA, of course, another legacy of the two-tier troublemaker from 1983. Some of the partners participated in the litigation, but some stayed on the bench, watching the fight but taking no part.

Here’s Judge Holmes with the story: “The Court released its opinion…, and then ordered the parties to try to agree on the language of the decisions. They did so, but discovered a small gap in our rules: what to do with nonparticipating parties. In these cases, an estate was an indirect partner and thus a party, but had not participated in the litigation. When participating parties settle, Rule 248 requires the Commissioner to move for entry of decision and the Court to wait 60 days from the filing of such a motion to see if any nonparticipating party objects. But here the parties didn’t settle, they litigated; yet when the opinion came out, they were able to agree on appropriate language in the decisions.” Order, at p. 1.

So “settle order on notice,” more particularly bounded and described in my blogpost thus entitled, is a good idea. But the nonparticipant is left out of the process.

What to do? Why, treat the settled order-judgment as if it were a stip, taking a leaf and a counterfactual assumption from the collected works of Judge Lauber and the late Hans Vaihinger.

“Counsel for the Tax Matters Partner in these cases thoughtfully suggests (and respondent agrees) that an analogous procedure — giving notice to the nonparticipating partner and waiting 60 days — would work here. Both parties represent that they have sent the Court’s opinion and proposed decisions to the nonparticipating Estate, but have not received any reply.” Order, at p. 1.

But Judge Holmes takes no chances. Let the TMP give Judge Holmes the address of the estate (he means the personal representative(s), ex’r(s) or adm’r(s) as the case may be), and he’ll fire off a copy his own self. Then the persrep, ex’r, or adm’r can object, consent or stand mute, within sixty (count ‘em, sixty) days.

And the Tax Matters Partner can make a Rule 27(d) hush-hush application, if the persrep, ex’r or adm’r feels shy.

Glad to see our old State court ways enshrined at the Glasshouse at 400 Second Street, NW.


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