In Uncategorized on 03/14/2018 at 17:22

I’m not blogging today’s T. C. Memo., R. J. Channels, Inc. It’s the story of an EA gone wrong, and those who want can read it. But Judge David Gustafson’s unlimited largesse is once again in evidence in a designated hitter, Daniel E. Larkin & Christine L. Larkin, Docket No. 6345-14, filed 3/14/18. And once again, it’s about what is in evidence.

Dan’s & Chris’ trial was twice postponed at their request, and was finally tried a year-and-a-half ago. Then followed motions to put additional exhibits into the trial record, stipulation of fact and supplemental stip, and on the post-trial brief yet another motion to put in fresh stuff.

Now IRS wants to put in the Section 6751(b) Boss Hoss sign-off that never made the trial record. The Glasshouse at 400 Second Street, NW has become the Land of the Free and the Home of the Graev.

Judge Gustafson: “The Court held a telephone conference with counsel for the parties…during which petitioners objected to respondent’s motion to reopen the record on the grounds that (1) the motion comes too late, (2) granting the motion would deprive petitioners of the chance to cross-examine the witnesses on whom respondent would rely for this issue, and (3) granting the motion would deprive petitioners of the opportunity to include this issue in their (already concluded) briefing of the case.” Order, at p. 3.

OK, the failure of IRS to put in the Boss Hoss on the trial is their misstep, not induced by Dan & Chris, let alone that Obliging Jurist Judge David Gustafson. So maybe IRS shouldn’t be allowed to wild card the Boss Hoss in so long after trial ended and briefing was finished.

But not in Judge David Gustafson’s courtroom.

“However, this is a case in which great latitude as to supplementing the trial record has been granted to petitioners. They have been twice allowed to supplement the trial record with additional evidence–and that, after having requested and having received two continuances of trial. In such a case, it seems inappropriate now to discover a new rigor that will be enforced only against respondent. Rather, in this circumstance we think that an even-handed approach is best obtained by allowing respondent to submit additional evidence.

“However, we acknowledge petitioners’ desire to be allowed to cross examine respondent’s witness(es). For example, section 6751(b)(1) requires approval by the determining individual’s ‘immediate supervisor’, whereas the ‘Civil Penalty Approval Form’ that respondent proffers bears a signature by a ‘Group Manager’, who might or (for all we can tell) might not be the immediate supervisor of the examiner who made the initial determination. Therefore, we will hold a supplemental trial session, at which petitioners will be able to explore this issue (unless it is resolved to their satisfaction before that session). We also acknowledge petitioners’ reasonable request to brief this issue; and at the conclusion of the session, we will set a schedule for doing so.” Order, at p.4.

In the meantime guys, play nice, stip it all out and save Judge David Gustafson from holding a post-trial trial.

But I can’t say Dan & Chris are wrong in wanting to scope out the Boss Hoss thoroughly. See my blogpost “Robosigner?” 12/23/16.



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