Attorney-at-Law

OFFSIDE

In Uncategorized on 07/02/2018 at 13:12

With the world in the throes of the Kickball Championship of the Galaxy, the aficionados thereof doubtless glued to the screens and discoursing at length and with vehemence about the offside rule (did not the Lower Oölitic striker outpace (or not) the Silurian fullback? And the ref allowed the goal? Sound the alarum, blow wind, come wrack!), that Obliging Jurist Judge David Gustafson has a lecture on the Tax Court appellate offside rule in Duncan Bass, Docket No. 12871-17, filed 7/2/18.

Dunc lost a Section 274 and Section 170 substantiation off-the-bencher last month that I didn’t blog, and got sent off to do a Rule 155 beancount. Nothing daunted, Dunc, a Tar Heel, headed for 4 Cir sans beancount, protesting Judge Gustafson’s order. Judge Gustafson wants the beancount to go forward so he can issue a decision. This is a deficiency case, and a deficiency can’t be decided without a number.

Courtesy is Judge Gustafson’s middle name.

“Of course we do not speak for Court of Appeals, nor do we rule on appeals of our own orders, but we are responsible to determine whether to continue our proceedings when a party has filed a notice of appeal.” Order, at p. 2.

Bowing to Golsen (the law of the Circuit where the taxpayer is located at time of trial rules), Judge Gustafson finds 4 Cir decides appeals from decisions and appealable interlocutory or collateral orders.

“These non-final, interlocutory orders that may be appealed are, pursuant to 26 U.S.C. sec. 7482(a)(2)(A) (which is the Tax Court analog to 28 U.S.C. sec. 1292), orders that include a ‘statement that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation’. Our order did not include such a statement (and neither party requested that we amend the order to include such a statement). Thus, our order from which Mr. Bass purported to appeal does not meet the exception in section 7482(a)(2)(A).” Order, at p. 2.

“Tax Court Rule 193(c) provides that ‘proceedings in the Tax Court shall not be stayed by virtue of any interlocutory order that is or may be the subject of an appeal.” Thus, Mr. Bass’s premature appeal does not stay our Rule 155 proceedings.” Order, at p 2.

So Dunc, do the numbers. And don’t panic. When the numbers are done, Judge Gustafson has promised to give you a final, appealable order

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