In Uncategorized on 03/31/2018 at 00:28

I’m a great fan of summary J; that’s summary judgment, or judgment without trial. See my blogpost “Summary Judgment – A Causerie,” 3/13/14.

But for the motion to work, that is, to dispose of the case altogether (in one’s favor, of course), or to smoke out one’s adversary and tie the adversary down as to facts and law, and, as a collateral benefit, find out what the judge thinks of your case, your case has to be ripe enough, that is, enough facts alleged and substantiated to warrant disposition, at least in part.

I doubt Rose M. Saustegui, Docket No. 20674-17, filed 3/30/18, knew she was moving for summary J when she filed her “MOTION TO DISMISS,” wherein she claims “…we have supplied the IRS with all documents and receipts they have requested. They have requested logging miles on my vehicle which were damaged due to hurricane.” Order, at p. 1.

Of course, a deficiency case can’t be dismissed otherwise than for want of jurisdiction without entry of decision in favor of IRS for the whole amount of the deficiency.

So STJ Daniel A. (“Yuda”) Guy treats Rose’s motion as one for summary J.

I’m sure my sophisticated readers have already spotted the easy response IRS made, rather like the cross-court overhead smash that follows a desperation lob.

IRS says, “No, you haven’t.”

Or rather, as STJ Yuda more elegantly puts it: “Respondent opposes petitioner’s motion and disputes her assertion that she has substantiated the expenses in dispute. Notably, petitioner has failed to show that she has provided respondent with all requested documents and receipts. Accordingly, drawing factual inferences against petitioner as the moving party, we conclude that petitioner has not shown that there are no material issues of fact in dispute at this juncture of the litigation with respect to whether she is entitled to the deductions and credits claimed on her… return and whether she is liable for the accuracy-related penalty under I.R.C. section 6662(a).” Order, at p. 2.

No summary J, but STJ Yuda has some advice for Rose.

“This case requires more evidentiary development. Evidence is received by the Court by means of the stipulation and trial process, not through pleadings such as the petition, answer, and any reply. See Rules 91 and 143, Tax Court Rules of Practice and Procedure. Petitioner is strongly encouraged to meet with respondent’s counsel, exchange documents, and attempt to settle the case or otherwise execute a stipulation of facts and prepare for a trial.” Order, at p. 2.

OK, but maybe after some argy-bargy with IRS, there can be a stipulation of agreed facts that doesn’t give away Rose’s case. And although piecemeal motions for summary J are much disfavored (see my blogpost “The Second Time Around – Part Deux,” 8/1/17), it just might could be that another motion for summary J does the job.

With the proper disclosure of the previous application for the relief sought therein, of course.

It’s my fault this blogpost is delayed. I once again acknowledge with gratitude the overwhelming hospitality of my brother and sister-in-law. Many thanks again, guys.


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