In Uncategorized on 03/10/2020 at 21:51

The Hombres’ one-hit wonder from 1967 furnished me with titles galore, so I revert yet again, to tell the story of a designated hitter from the wordprocessor of Judge Elizabeth A. (“Tex”) Copeland, Ryan Foster, Docket No. 7073-19, filed 3/10/20.

Ryan is apparently a potter who wants Section 280E ruled unconstitutional on Fifth, Eighth, and Sixteenth Amendment grounds, among others. Ryan is apparently a principal of High Mountain Medz LLC, a retailer of herbal medicaments legal in his home State, but proscribed by the Federales.

But before IRS can respond to Ryan’s summary J motion, Judge Tex needs Ryan to do as the headline hereof directs.

“A more detailed review of petitioner’s motion by this Court has illuminated issues with his summary judgment motion that must be addressed before respondent should be obligated to respond. Importantly, the factual assertions in petitioner’s summary judgment motion were not supported by affidavits or declarations made on personal knowledge or by documents.

“As a general rule, documents that are not part of the record must be introduced to the Court, in support of a motion for summary judgment, by way of an authenticating affidavit or declaration made on personal knowledge. See Rule 121(d); see also 11 James Wm. Moore, Moore’s Federal Practice, para. 56.92[3], at 56-209 (3d ed.2014). Statements in briefs do not constitute evidence. See Rule 143(c). In addition, documents referred to in a motion for summary judgment should be attached thereto and properly authenticated. See Fed.R.Evid. 901 and 902.2 Without documents identified by a proper affidavit or otherwise made admissible in evidence, factual assertions in a summary judgment motion are not admissible evidence, and they cannot be properly relied on by this Court in considering petitioner’s motion.” Order, at pp. 2-3 (Footnote omitted, but it says see FRE 901 for what needs authenticating, and FRE 902 for what is self-authenticating.).

All Ryan says is that he and his co-principals were never convicted of a crime. OK, but “(T)he factual inquiry key to all seven of petitioner’s above delineated legal and Constitutional challenges to respondent’s notice of deficiency is whether petitioner was trafficking in a controlled substance through an entity known as High Mountain Medz LLC (HMM), in which he was a principal. However, petitioner has put forth no evidence via affidavit or otherwise regarding HMM’s line of business.” Order, at p. 3.

Summary J denied, without prejudice.

Once again, in USTC, let it all hang out.

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