In Uncategorized on 04/13/2020 at 09:09

Just the other day we saw Steve Mnuchin and the Treasury Munchkins giving everybody Corona-induced temporal distancing in Notice 2020-23, 4/9/20. But note well that Tax Court motion practice is apparently not subsumed within the mantle of Specified Time-Sensitive Actions. And if your motion required action before 4/1/20, Notice 2020-23 won’t help you, even if your trial got pushed off to the indefinite future.

Kent Trembly, Docket No. 25068-17L, filed 4/13/20, is caught up in the Twilight Zone of Corona. It’s really Kent’s trusty attorney, whom I’ll call Howie, who is involved.

Kent’s response to IRS’ motion for summary J, pre-supplement, was due last month. IRS supplemented four (count ‘em, four) days before Howie’s due date. But five days after due date, Howie not having responded to IRS’ motion, supplemented or unsupplemented, Judge Gale called off Kent’s trial because Corona.

“Petitioner was already delinquent in responding to the Motion for Summary Judgment when the Cancellation Order was served on him and to date petitioner has not filed a response.

“The Court surmises that petitioner’s counsel assumed that cancellation of the trial setting relieved petitioner of any obligation to respond to the Motion for Summary Judgment. However, the Cancellation Order provides: “The Court expects that the parties will continue to * * * work towards a resolution of the issue(s) in this case.” In the procedural posture of this case, that work includes resolution of the pending Motion for Summary Judgment. In these circumstances, the Court will exercise its discretion to waive any consequences of petitioner’s failure heretofore to respond to the Motion for Summary Judgment, see Rule 121(d) (last sentence), Tax Court Rules of Practice and Procedure, and instead extend sua sponte the date by which petitioner shall respond to the Motion for Summary Judgment, as supplemented.” Order, at pp. 1-2.

Takeaway- Unspecified Time-Sensitive Paperwork goes on.

And one more thing. IRS’ latest game of supplementing a motion for summary J a couple days (hi, Judge Holmes) before the date-certain cutoff for petitioner’s response is dirty deck tennis. If the original motion is incomplete or defective, IRS should move to withdraw and refile, or ask the Court in the supplement to give petitioner or counsel additional time to respond. The present system wrong-foots petitioners and their counsel, who may have spent hours working up a response, only to find their work nullified by the “supplement,” with no time to respond adequately. I called out one IRS attorney in my blogpost “Play Nice or Go Home,” 3/20/20. Now I’m calling out Lisa Kathryn Hunter, Esq.  And most respectfully suggesting Judge Gale do as Judge David Gustafson did in my blogpost aforesaid.



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