Attorney-at-Law

A LAMENT FOR OMNIBUS

In Uncategorized on 05/22/2020 at 10:47

No, not the long-departed and much-lamented television series, from the days when commercial television had pretensions to a brain. Today I want to talk about the omnibus motion, a fixture in State court (and the Federal courts as well), but a pariah at the locked-down Glasshouse on Second Street.

For the civilians in the audience, an omnibus motion combines various grounds for various requests for relief, and lets the Court resolve all these matters at once. Initially, it’s more work for counsel on both sides, and the Court, but it’s a great tool to clear cut and brush hog a lot of extraneous matter, or even dispose of the case itself.

I understand that Tax Court expresses its solicitude for the self-represented in Rule 54(b) single-shot  motion practice. Jack-lighting deer with one headlight is cruel enough; a muilti-highbeam array is many times worse. And of course, unlike many courts, State and Federal, there is no office for the self-represented at the Glasshouse.

But IRS attorneys are under pressure to clear dockets. So I don’t fault the IRS attorney, doubtless frustrated by petitioner’s nonresponsiveness, for flashing the highbeams at John Joon-Il Kim , Docket No. 6160-18, filed 5/22/20.

I’ll defer to That Obliging Jurist, Judge David Gustafson, to tell the tale.

“…the Commissioner filed a ‘Motion to Dismiss for Failure to Properly Prosecute’…which alleges (at paras. 59-61) a history of non-response and non-communication by petitioner. The bulk of the motion, however, consists of assertions about the amount of petitioners’ correct tax liability in support of a ‘claim for increased deficiency’ (para. 55). It is not unusual to see, in a motion to dismiss for failure to prosecute, a request for a decision redetermining a deficiency in a decreased amount, reflecting partial concession by the Commissioner.” Order, at p. 1. (Emphasis by the Court).

Now of course Judge Gustafson isn’t going to let the deficiency hike go by.

“However, the undersigned judge believes that a claim to increase the amount of the deficiency is best stated in respondent’s original answer or in an amended answer that respondent moves for leave to file, in compliance with Rule 41(b). In this instance the ‘claim’ is inserted in a motion to dismiss for failure to prosecute, and is contrary to the spirit, if not the letter, of Rule 54(b) (forbidding ‘joinder of motions’). We would entertain a proper motion to amend the answer to assert an increased deficiency or a motion to dismiss for failure to prosecute, but not both simultaneously.” Order, at p. 1.

So the motion gets tossed without prejudice.

But the gambit seems to have worked, at least with Judge Gustafson.

Judge Gustafson orders that JJ, by June 26, “…shall confirm or correct his mailing address and telephone number, and he shall respond to paragraphs 59-61 of respondent’s motion (alleging that Mr. Kim failed to return telephone calls and failed to respond to letters). He should begin immediately to communicate with his opponent, the IRS’s attorney, Amy Chang.” Order, at p. 2.

I mention IRS’ attorney by name here, and give her a Taishoff “Good Try, First Class.” I add, however, a warning not to make this standard operating procedure when confronted with a stonewall. While this gambit may work once or twice, systematically ignoring a Court Rule can get you jacked up.

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