In Uncategorized on 04/24/2020 at 13:24

Now that he’s been relegated to the Senior Class, Judge Mark V Holmes’ opinions and orders are becoming collectors’ items. And if this my blog ever gets on Antiques Roadshow, I expect one of my fave appraisers to get goggle-eyed over today’s entry, Continuing Life Communities Thousand Oaks LLC, Spieker CLC, LLC, Tax Matters Partner, Docket No.4806-15, filed 4/24/20.

Y’all will remember Warren Speiker, a man of infinite variety. No? Then see my blogpost “Titular Signatory,” 8/3/16. Warren is still at it. He wants Judge Holmes to take judicial notice of what an IRS attorney said in a brief in a different case.

So Judge Holmes takes notice of judicial notice.

Now the issue is the same in both cases: “when can the IRS disallow a taxpayer’s accounting method when that method is based on generally accepted accounting principles.” Order, at p. 1.

We start with the general concept.

“Tax Court follows the Federal Rules of Evidence. FRE201 tells us that a court ‘may take judicial notice of adjudicative facts not subject to reasonable dispute which are either generally known within the jurisdiction of the Court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.’ We’ve taken judicial notice of what day of the week a particular date fell on, and even in a lighthearted spirit that some allowance for snow-removal expenses by a landlord in Buffalo was to be expected.” Order, at p. 1. (Citation omitted).

The magic words are “adjudicative facts.” That means the facts of the specific case at bar necessary to decide a material element of that case. In short, only the facts, ma’am.

“…a motion to take judicial notice of what another of [IRS’] lawyers argued in another case is not such a fact, but rather a suggestion that the persuasiveness of a particular argument should be reduced because it’s insincerely held or more likely to be wrong because of inconsistency.” Order, at p. 2.

But even that much doesn’t help Warren.

“We don’t take judicial notice of prior assertions for the truth of those assertions. We also gently observe that the Commissioner seems to be involved in a very large percentage of cases tried in our Court, employs a very large number of lawyers, and cannot reasonably be expected to express the nuances of his positions in each case in ways that are entirely consistent across all litigation.” Order, at p. 2. (Citation omitted).

I’ve often said that orders and T. C  Sum.Op.s can’t be cited. But you can sure cut-and-paste the reasoning and citations without attribution into your papers.




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