Attorney-at-Law

FOR WHOM THE EQUITABLE TOLLS

In Uncategorized on 04/10/2020 at 10:06

I don’t generally (love that word!) follow Tax Court cases on appeal to the USCCAs. I leave that to the blogosphere and the trade press. They have the personnel and time to keep watch over that flock by night and day.

But today Judge Tamara Ashford has gotten David T. Myers, 2151-15W, filed 4/10/20 back from DC Cir on R&R, and that’s no holiday package. It’s Reversed & Remanded. All my readers (dwindling in numbers each day under the brunt of COVID-19) will remember David T as an epistolary warrior with the Ogden Sunseteers over the opacity of their purported shootdowns.

If you don’t, then see my blogpost “Forms and Letters,” 6/5/17.

Well, last year DC Cir decided that the Section 7623(b)(4) thirty-day cutoff to petition an OS shootdown is not jurisdictional, and maybe so David T, an humble pro se, should get the benefit of equitable tolling. Equitable tolling means SOL affirmative defense doesn’t bar a claim in cases where the petitioner, despite use of due diligence, could not or did not discover the injury until after the expiration of SOL. Like the sponge left in the patient cases.

And even though Section 7623 is not overly protective of blowers, which is one of the usual standards, “(T)hat the whistleblower statute is not unusually protective of claimants is the only consideration on the IRS side of the ledger. Without more, we are not persuaded to set aside a presumption that has been so consistently applied. See e.g., Young v. United States, 535 U.S. 43, 49 (2002). ‘It is hornbook law that limitations periods are subject to equitable tolling.’ (cleaned up).” Myers v. Com’r, No. 18-1003, filed 7/2/19 (DC Cir), at p. 22.

So now Judge Ashford would like to hear what the parties have to say.

What a lovely silt-stir this will create. I wish the Senate would get Judge Holmes back with the juniors, so he and Judge David Gustafson could provide me with more good blogfodder, while I couch-potato my way through the viral impasse.

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