Attorney-at-Law

DEMAND FOR REMAND? – PART DEUX

In Uncategorized on 05/10/2018 at 16:55

Mica Ringo is back, again posing conundra for IRS and Tax Court, in Docket No. 29562-12W, filed 5/10/18.

If you’ve forgotten Mica, check out my blogpost “A Hotly Burning Question What Has Swept the Continent – Redivivus,” 7/28/17. Mica features therein, and the questions posed then reverberate now.

Mica and IRS made a joint motion to remand this whistleblower case to Appeals, and IRS files a motion for leave to file a supplement to the joint motion, and the First Supplement.

“Foot fault!” shout my hip readers. “You file your motion for leave, and lodge, not file, your supplement.” Remember, in Tax Court, it’s “mother, may I?”

Ch J L Paige (“Iron Fist”) Marvel jumps on the point, of course, and so gently chides IRS. “Because a motion for leave should be resolved prior to the filing of the supplement, the First Supplement to Motion To Remand should have been lodged rather than filed.” Order, at p. 1.

I bet Ch J Iron Fist can’t wait for the salute-and-march-off at the change of command ceremony at the end of this month, when Ch J-elect Maurice B (“Mighty Mo”) Foley steps forward to play “Mother, may I?”

But there’s a twist.

Mica’s cool with the motion for leave to file the supp, but changed his mind as to the remand.

Lots of good tactical theory here. If the supp helps Mica, let it come in, and let Ch J Iron Fist or her designate decide the case on the present record plus the supp, without the further delay of sending everybody back to Appeals.

Check out Judge Albert G (“Scholar Al”) Lauber’s take in my abovecited blogpost.

On the other hand, if the supp helps Mica, but if IRS needs to refurbish, reconstitute and reupholster the administrative record to keep the supp from sinking them, why give IRS a second swing at the baseball?

And the question of a motion to remand in a whistleblower case is not finally determined. All those I know of were joint motions, so no need for a judge to look behind.

But here one party, having consented, now reneges. Sounds like something ripped from the headlines, huh? Sorry, this is a non-political blog.

So Ch J Iron Fist denies the motion for leave, strikes the supp, and tells the parties to show cause why the joint motion should not be stricken from the record.

Depending upon how Mica and IRS come back, Ch J Iron Fist will let the parties each file what motion they like.

But why show cause why the motion should not be stricken from the record, and not just denied?

 

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