Attorney-at-Law

CHOPS AREN’T ULTIMATE

In Uncategorized on 03/20/2020 at 14:03

At least they aren’t for Section 7482(a)(2)(A) interlocutory appeals. So says Judge Albert G (“Scholar Al”) Lauber in Belair Woods, LLC, Effingham Managers, LLC, Tax Matters Partner, Docket No. 19493-17L, filed 3/20/20.

All y’all will recollect Judge Lauber leading a four-way Tax Court bench split that laid some, but not all, of the chops IRS was seeking on Belair. What, no? Then see my blogpost “Can We Talk – Part Deux,” 1/6/20.

So Belair wants an interlocutory appeal. Specifically, they want 11Cir to rule on “…our determination that the Commissioner met the supervisory approval requirement with respect to the penalties asserted under section 6662(c), (d), and (h).” Order, at p. 2.

These are negligence, substantial understatement, and gross valuation misstatement chops, and Belair is disputing the Boss Hossery therewith involved.

Judge Scholar Al: “Before certifying an order under section 7482(a)(2) the trial judge must confirm that the order involves a ‘controlling question of law’ and that ‘substantial ground for difference of opinion’ exists as to the correctness of the determination underlying the order. The judge must also ascertain whether an immediate appeal will ‘materially advance the ultimate termination of the litigation.’ In assessing these factors the Court must weigh the policies favoring the ‘avoidance of piecemeal litigation and dilatory and harassing appeals.’ We do not believe that the supervisory approval issue involves a ‘controlling question of law’ or that immediate appeal of this issue would ‘materially advance the ultimate termination of the litigation.’ Order, at p. 3.

The Section 7482 interlocutory appeal has to be a clean-kill, one-shot question of law, with no record to review. Even if the appeal could result in a reversal, that isn’t enough. The appeal would have to obviate the need for a trial or materially shorten one.

And since this is another conservation easement case, the appeal would do none of the above. There still is perpetuity to decide. Neither would it shorten the trial, as the same experts upon whom Belair relied for a reliance-on-professionals defense to the chops would have to testify as to their expert opinions on valuation on the trial.

Takeaway- Unless all you’re trying is whether whatever piece of paper IRS relies upon for the chops is the proper Boss Hoss sign-off, getting an interlocutory appeal on the chops issue is a real longshot.

 

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