Attorney-at-Law

WHITEFISH AND SILT

In Uncategorized on 05/13/2020 at 11:03

The echoes of Oakbrook Land Holdings, LLC, William Duane Horton, Tax Matters Partner, 154 T. C. 10, filed 5/12/20, and its companion 2020 T. C. Memo. 54, of even date therewith, have already disturbed my morning quiet on this Minor Outlying Island off the Coast of North America.

Taking the title hereof in reverse order, the silt-stir has begun. Ex-Ch J Michael B (“Iron Mike”) Thornton was dealing with an IRS summary J motion in Buckelew Farm, LLC f.k.a. Big K Farms LLC, Big K LLC, Tax Matters Partner, Docket No. 14273-17, filed 5/13/20, when the silt-splash from Oakbrook hit.

Seems “(T)hese opinions address issues similar to those raised in respondent’s motion for partial summary judgment….” Order, at p. 1.

So, “…the parties shall each…file a memorandum setting forth the effect, if any, of the Court’s May 12, 2020, opinions in Oakbrook Land Holdings, LLC, William Duane Horton, Tax Matters Partner v. Commissioner, 154 T. C. __ (May 12, 2020) and Oakbrook Land Holdings, LLC, William Duane Horton, Tax Matters Partner v. Commissioner, T.C. Memo. 2020- 54, on respondent’s motion for partial summary judgment….” Order, at pp. 1-2.

I’ve said it before: Stir, baby, stir – that silt.

But now for a treat.

How ‘bout some non-vacuum-packed hot-smoked whitefish? With a couple slices old-time Russian rye-pumpernickel, salted butter and a wee glass tea (hi, Judge Holmes, this is your party).

Judge Holmes, dissenting in 154 T. C. 10, at, p. 110, starts talking about US v Nova Scotia Food Prods. Corp., 568 F. 2d 240 (2 Cir, 1977). “Nova Scotia also shows what should happen when an agency doesn’t consider significant comments.” And a lot more to the same effect.

That’s like throwing the fish head at Judge Scholar Al, a dab hand with the footnotes.

“Our dissenting colleague errs in relying on United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240 (2d Cir. 1977), to support his position. See dissenting op. pp. 110-113. That case involved a Food and Drug Administration (FDA) regulation establishing minimum ‘time, temperature, and salinity’ requirements for processing fish. The Second Circuit invalidated the regulation as applied to one category of fish product, ‘non-vacuum-packed hot-smoked whitefish.’ Nova Scotia Food Prods. Corp., 568 F.2d at 253. The court first held that the FDA had ‘failed to disclose to interested parties the scientific data and the methodology upon which it relied.’ Id. at 250. ‘When the basis for a proposed rule is a scientific decision, the scientific material which is believed to support the rule should be exposed to the view of interested parties for their comment.’ Id. at 252. The court also held that the agency had failed to consider: (1) evidence that heating ‘certain types of fish to high temperatures will completely destroy the product,’ (2) the suggestion that using ‘nitrite and salt as additives could safely lower the high temperature otherwise required,’ and (3) the suggestion that different processing requirements should be established for different species of fish. Id. at 245. Here, the basis for the proposed regulation was not ‘a scientific decision’; Treasury relied on no undisclosed data when proposing its regulation; the two commenters who opposed the judicial extinguishment rule offered no concrete alternative suggestions; and the concerns they expressed lacked the significance of concerns about destroying the commercial viability of a product, which the Second Circuit aptly described as ‘vital questions’ in Nova Scotia Food Prods. Corp., 568 F.2d at 252.” 154 T. C. 10, at pp. 22=-23, Footnote 17.

Ya gotta love this stuff.

 

 

 

  1. […] which have already been covered by Lew Taishoff, the fastest tax blogger in the east, here, here and here. I will be getting to those cases in the next few days. Regardless, that approach by IRS […]

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  2. […] which have already been covered by Lew Taishoff, the fastest tax blogger in the east, here, here and here. I will be getting to those cases in the next few days. Regardless, that approach by IRS […]

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