Attorney-at-Law

THE ROCK OF SVITHJOD

In Uncategorized on 05/18/2020 at 14:56

“High up in the North in the land called Svithjod, there stands a rock. It is a hundred miles high and a hundred miles wide. Once every thousand years a little bird comes to this rock to sharpen its beak.

“When the rock has thus been worn away, then a single day of eternity will have gone by.” Hendrik van Loon, The Story of Mankind, 1921.

I feel a kinship with those little birds. When I make suggestions for more user-friendly Tax Court rules and procedures, I feel as if I am trying to wear away that rock in Svithjod, just like those little birds.

Notwithstanding my apparently futile efforts, I have for my text today Judith I. Napoleon and George Napoleon, Deceased, Judith I. Napoleon, Successor In Interest, Docket No. 981-20, filed 5/18/20.

Judith petitioned a SNOD, but was the sole signer. Her trusty attorney then appeared, and Judith moved to change the caption and sub in for the late George. Motion granted.

Ch J Maurice B (“Mighty Mo”) Foley also told Judith to file a ratification of petition as successor-in-interest.

Judith did so this past Friday. “Judith I. Napoleon electronically filed a Ratification of Petition …. …Judith I. Napoleon further electronically filed a Certificate of Service in connection with her … ratification of petition.” Order, at p. 1.

Ch J Mighty Mo: “A ratification of petition may not be electronically filed, but must instead be filed in paper form and bear the original signature of Judith I. Napoleon as decedent’s successor in interest. See Tax Court Rule 26(b)(1).” Order, at p. 1.

And the electronic filings are stricken.

OK, but how is Judith to do this filing? She can snail mail or PDS the documents, but as Tax Court is closed (and has been since mid-March), what happens if no one is present to receive them? The press release of 3/23/20 says mail will not be delivered to Tax Court. Various orders from various judges and STJs state that the mailings will be returned to sender, who can then re-mail them when Tax Court reopens, with the original envelopes to establish date of initial rejected mailing enclosed therewith.

I most respectfully suggest that this is wasteful. We just had Judge Gale point the way. “While petitioners’ electronic filing of the ‘Expert Report of B’ as an attachment to petitioners’ Report filed March 30, 2020, violates Rule 143, we nevertheless conclude that compliance with the mailing requirement is infeasible with mail delivery suspended.” See my blogpost “The Octavia Rules,” 4/1/20.

And lest anyone think that was an April Fools’ joke, they can look it up.

Compliance with the mail rule is admittedly infeasible.

Rule 34(a) as amended provides the solution: “A petition may be filed electronically under the electronic filing procedures established by the Court, or a petition may be filed by properly mailing or hand delivering it to the Court.”

So establish the procedures. They can be temporary for the duration of the pandemic, or until further order of the Court. I suggest having the filing electronically, with the original to be sent to Tax Court when it reopens. But almost anything is better than double mailing.

And thinking about lone birds and eternity, there are all kinds of Bar associations, with foci on geography (States, counties, cities), ethnicities, genders, and even courts and areas of practice. There’s a USCFC Bar Association and a Federal Bar Association. But there is no United States Tax Court Bar association.

Why not? One bird amounts to nothing. A flock is different. Enough birds, and even the Rock of Svithjod might have to yield a lot sooner.

 

 

 

 

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