In Uncategorized on 04/17/2020 at 16:08

My colleague and pleasant luncheon companion, Peter Reilly, CPA, in the past has gently chided me for my “dated pop culture references.” See his response to my blogpost “Days of Our Lives,” 1/13/20. I regret I must once more try that gentleman’s patience in that direction, without even being able to offer the balm of paying for lunch at Legal Seafood at Harborside, or the Union Oyster House in his hometown. Being confined to quarters at Firebase Taishoff, and doing fatigue duty receiving resupplies from Amazon and other online supply depots via USPS and UPS (and my deepest thanks to the warehouse crews, deliverypeople, and essential retail staff, including without limitation one of my nearest and dearest; ladies and gentlemen, stay safe, stay strong!), I cannot oblige.

I can only beg that Mr. Reilly will, for the moment, take the will for the deed, until I can substitute the deed, when the lights go on again all over the world.

Today is Friday, so no opinions. But Judge Albert G (”Scholar Al”) Lauber is not one to let a pandemic wither or stale his trusty word processor, as this Friday he echoes the immortal words of Sergeant Joe Friday: “Just the facts, ma’am.”

Scholar Al gifts the eager blogger with a designated hitter, Little Horse Creek Property, LLC, Little Horse Creek, LLC, Tax Matters Partner, Docket No. 7421-19, filed 4/17/20.

Now when I see stacked LLCs, with cutesy, outdoorsy names, I see Section 170 conservation easements, Swiss cheese cutouts, the rule for perpetuity, and IRS seeking summary J.

Judge Scholar Al and the parties don’t disappoint me. IRS wants a stay of discovery pending order on its summary J motion. Neither Tax Court Rules nor FRCP 56 grants an automatic stay, unlike our New York Civil Practice Law and Rules Section 3214(b). But that doesn’t deter IRS.

The Little Horses object, claiming “…that responses to its First and Second Requests for Admissions will support its defense against respondent’s Motion for Partial Summary Judgment and will support a potential cross-motion for summary judgment on one or more issues.” Order, at p. 2.

Judge Scholar Al is interested in the donor improvements issue. The deed of easement here contains the much-contemned language exempting the worth of donor improvements post-easement from the all-proceeds-of-extinguishment-to-the-501(c)(3) required clause. See my blogpost “The Old Texas Maxim,” 2/5/20, for some backstory.

Still, maybe the Little Horses can stave off the Boss Hoss’ chops. So Judge Scholar Al throws the Little Horses out onto the trail.

“In considering the donor improvements issue, it would seem desirable to have all relevant material before the Court at the same time, to enable the Court to determine (among other things) whether there exist any genuine disputes of material fact. Accordingly, we will deny respondent’s Motion to Stay Proceedings insofar as respondent seeks to be relieved of the duty to respond to petitioner’s First and Second Requests for Admissions, previously filed.” Order, at p. 2.

However, the Little Horses don’t have free rein.

“We will grant respondent’s Motion to Stay Proceedings insofar as he seeks to defer other forms of discovery until after the Court has disposed of respondent’s Motion for Partial Summary Judgment and any cross-motion that petitioner may file on the donor improvements issue.” Order, at p. 2.

Mr. Reilly, I hope to see you very soon.


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