In Uncategorized on 04/25/2018 at 15:26

I am quite sure that Judge David Gustafson, however obliging he may be, has never encountered RuPaul Andre Charles, or has had dealings with supermodels, whether on or off the runway. So the title of this little essay will not recall to His Honor the 1993 cavatina whence cometh said title.

Howbeit, Judge David Gustafson echoes Mr./Ms. Charles’ injunction to counsel in Johannes Lamprecht & Linda Lamprecht, Docket No. 14410-15, filed 4/25/18.

Linda’s counsel (and also Johannes’, which might spell trouble; see infra, as my expensive colleagues say) is as big a fan of summary J as I am. But his problem is as expressed hereinabove. Yesterday Judge Gustafson bounced an attempt at summary J by Linda to get out by asserting that Johannes’ fraud can’t be attributed to Linda.

“Our order of April 24, 2018 (ECF 80), observed that ‘the memorandum in support of her motion states very few facts; it cites no evidence’; and we criticized petitioner’s apparent intention to “leave to respondent (or perhaps to the Court) the task of extracting from prior filings the facts in this action that are relevant to this motion” and then the task of searching the record to see whether those alleged facts can be supported by materials in the record. Rule 121 does not permit this approach.’ We denied the motion.” Order, at p. 1.

Well, ya gotta admit the dude isn’t a quitter, whatever his skills as a pleader. And he sure checks the Tax Court website even more carefully than I do. Later the same day (yesterday), counsel shoots in another summary J motion with memorandum.

“The memorandum appears to assert that alleged fraud attributed to Mr. Lamprecht cannot be attributed to Ms. Lamprecht, but it gives no factual information whatsoever that would permit this distinction to be examined. The memorandum (at 21) cites an affidavit that appears in a prior filing to support an assertion about the IRS’s intention to issue a summons; but the memorandum generally alleges facts about issuance of the summons, summons litigation, and withdrawal of the summons, for which allegations it cites no support. Once again, petitioner seems to assume that the Court will itself derive the specific facts from somewhere in the record, or will assume facts in petitioner’s favor unless respondent disputes them. This reflects a misunderstanding of the movant’s burden under Rule 121.” Order, at pp. 1-2.

So Judge Gustafson bounces the second summary J try. And imposes a limitation I’ve seen in State court, where a too-energetic litigator (whether pro se or counsel) tries the bombardment tactic. It’s called the “Mother, may I?” rule.

“…neither petitioner shall hereafter file a motion for summary judgment without first scheduling and conducting a telephone conference with the Court and respondent.” Order, at p. 2. Pre-motion conference is a rule in a number of courts.

And counsel has yet more homework.

The main case upon which counsel relies doesn’t quite say what he says it says, at least not to Judge Gustafson, but I’ll leave that for those of you who want to read Judge Gustafson’s order and the case therein cited. You tell me.

But there’s more. What would a Tax Court case be without at least one look at the Section 6751(b) Boss Hoss sign-off?

“…Section 6751(b) makes no mention of ‘fraud’ in particular and makes no provision whatsoever affecting the running of the statute of limitations under section 6501(c)(1) as the result of ‘a false or fraudulent return’. Even if we were to accept petitioner’s novel suggestion that section 6501(c)(1) constitutes a ‘penalty’ of sorts, it would not be the sort of penalty affected by section 6751(b), which provides that ‘No penalty shall be assessed’. A statute of limitations is not ‘assessed’. … If one of the petitioners in this case has separate contentions that would relieve her of liability to the relative disadvantage of the other petitioner, then due attention should be paid to whether a conflict of interest might exist that would prevent one attorney from representing both petitioners. See Rule 24(g).” Order, at p. 2. (Emphasis by the Court).

I love summary J. But for it to work, you better work.


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