In Uncategorized on 12/02/2019 at 19:23

My respect for that obliging jurist, Judge David Gustafson, has been heretofore set forth too many times to number, in this my blog. His famous dissents resulted in massive silt-stirs. His obliging nature leads him to offer to try your case in the slammer wherein you reside, draft your papers for you, and do all but bring coffee and Krispy Cremes to court on the morning of trial and feed the parking meter while you wait.

But today, Judge David Gustafson disses one of my all-time, all-star favorite moves. Here’s Arthur M. Bialer, Docket No. 6983-19W, filed 12/2/19.

Art’s bœuf with the Ogden Sunseteers is old, even though his petition is new (May 1, 2019, virtually brand-new). Art claims the OS crew treated him to a “…twelve-year campaign of delay, obfuscation, and destruction and/or suppression of evidence….” Order, at p. 2.

But Art is on for trial in January in The City L’Enfant Built. IRS wants a continuance (that’s an adjournment for us State courtiers) because the trial is set barely nine months after petition and only 28 (count ‘em, 28) days after issue was joined. Now my mentors, long ago in a galaxy far away, used to say that if you weren’t ready to try your case the day you filed your first pleading, you were a flop. Well, fast forward a millennium to the age of electronic discovery with 40 million (count ‘em, forty million) documents (see my blogpost “The Forty Million,” 4/29/15), and maybe not.

IRS wants to move for summary J. Obviously they’re going to play the Kasper gambit, Lacey variation: no proceedings, no collection, no award, no case. Art vociferously objects, saying he wants the trial when scheduled.

Judge Gustafson thinks both IRS and Art got it wrong.

As for Art, the issue is abuse of discretion by the OS, not trial de novo of whatever Art claims. And the review is limited to the administrative record, that is, what Art gave the OS, and what they did (or didn’t do) when they got it. And if what Art gave them either was useless, or if it did get to the operations branch (examination, collection, CID) and they did nothing, or did everything but collected nothing, game over. Tax Court can’t order operations branches to do anything.

As for IRS, “….neither party has filed a proposed administrative record; and it is evident that the parties have neither agreed on the contents of that record nor yet identified any particular disputes. We therefore cannot tell when this case will be ready for decision on the merits nor even when it might be ripe for an evidentiary hearing on the contents of the administrative record, if needed.” Order, at p. 2. And Art and IRS’ counsel are still fighting over a Rule 103 protective order.

But here’s the real hitch, and the cause of my concern.

“The Commissioner anticipates that, once the contents of the administrative record have been identified, he will be in a position to request a merits decision without trial on the basis of a motion, which he characterizes as a ‘motion for summary judgment’ (i.e., under Rule 121). When addressing a motion for ‘summary judgment’, however, we look for a dispute of material fact and then we deny the motion in the presence of such a dispute. It would seem that, if we followed the procedures of Rule 121 in this whistleblower case, then if there were a dispute of fact as to whether the WBO had abused its discretion, we would not resolve that dispute but instead would deny the motion. Such a denial would then be followed by a trial at which the dispute would be tried and decided–but, as we have observed, whistleblower cases are decided not after trial but on the basis of the administrative record. Under the principles set out in Kasper, it would seem that, once we have the administrative record before us, we decide ‘genuine disputes of material fact’ (contrary to the procedures of Rule 121) about whether or not the WBO abused its discretion. If this reasoning is correct, then a party seeking a decision in his favor in a whistleblower case should move not for ‘summary judgment’ but perhaps for entry of decision, more resembling a motion under Rule 122.” Order, at pp. 2-3.(Emphasis by the Court).

Judge, if you find a credible variance between blower and OS on an issue of material fact set forth in the administrative record proffered by IRS, but to which Art objects, even after remand, how do you “decide” without some kind of evidentiary hearing, just like a trial after summary J is denied? If there is no such variance, then summary J is exactly what should be given. Invoking Rule 122 instead of Rule 121 is, I most respectfully submit, a distinction without a difference.

But Judge Gustafson keeps the trial date, to cause the parties to focus on sorting out the administrative record and their differences.

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