It’s been attributed to Mark Twain that “No one’s life, liberty or property is safe while the Legislature is in session.” Whoever said it, it goes double for Congress.

That Obliging Jurist, Judge David Gustafson, has another conundrum, although this time he’s on the receiving end. Doris Ann Whitaker, Docket No. 4899-18, filed 5/15/20, is in pitiable state. She filed MFJ, but being a high-school dropout working as a nurse’s aid (sic; see Order, at page 1; I think you meant “nurse’s aide,” Judge), she thought that meant she was responsible only for her own tax, and was overwitheld.

Alas, she was wrong. She was also on the hook for $3700, being tax, interest and penalties for deadbeat, drug-addict spouse.

Doris wants innocent spousery, but since her case doesn’t fit into IRS ‘ “…sensible grid of criteria (see Rev. Proc. 2013-24), the IRS determined, in a ‘Final Determination’ (Doc. 1, attachment), that Ms. Whitaker is not entitled to relief under section 6015. Ms. Whitaker then filed her petition, asking this Court to review that determination pursuant to section 6015(e)(1).” Order, at p. 2.

Doris didn’t help herself by failing to respond to a document request or an IRS motion to toss for want of prosecution. Doris wanted a continuance for health problems.

Nevertheless, as this is Judge Gustafson, whose obliging nature goeth not merely the twain but pulls a mini-Marathon, “(W)ith the Court’s encouragement, counsel for the Commissioner stated that the case is susceptible of being resolved by summary judgment, and we ordered a schedule for the filing and briefing of that motion. The Commissioner filed a motion for summary judgment that argues that ‘there remains no genuine issue of material fact for trial’.” Order, at p. 2.

Well, MFJ means joint. Except.

“She apparently knew that her husband had income, but she did not know that she was filing a return of the sort that must report his income. Her education and resources may have contributed to that misunderstanding.” Order, at p. 2. So maybe this is a fact. Howbeit, Judge Gustafson asks both parties to ponder this in their future filings.

And while they’re pondering, Judge Gustafson does some pondering his own self.

“However, when we set up the schedule for summary judgment … we did not have in mind the relatively recent amendment reflected in section 6015(e)(7). Prior to that amendment, we would have expected that, if we discern a disputed issue of fact in a motion for summary judgment, we would then deny the motion and hold a trial at which we would decide that disputed issue of fact. But now section 6015(e)(7) directs that the Secretary’s ‘determination made under this section shall be reviewed de novo by the Tax Court and shall be based upon– (A) the administrative record established at the time of the determination, and (B) any additional newly discovered or previously unavailable evidence.’ This might mean that we already have before us in the current record all of the evidence that we should review to decide the case—but we do not know that. The Commissioner’s declaration… does not state whether the documents it contains are the full administrative record.” Order, at pp. 3-4.

Even so, does Section 6015(e)(7) mean that, when handling a Rule 121 on-the-papers, if there’s a disputed fact question the Court should decide it then and there?

But wait.

“However, only one party (the Commissioner) filed a motion. We have the discretion to construe an opposition to a summary judgment motion as a cross-motion for summary judgment, but only where ‘the court provides adequate notice to the parties and adequate opportunity to respond to the court’s motion’, 11 James Wm. Moore et al., Moore’s Federal Practice ¶ 56.10[4][a][I] (3d ed. 1997), and here we gave the Commissioner no such notice that we would treat Ms. Whitaker’s opposition as a cross-motion.” Order, at p. 5. So IRS’ summary J motion is denied, without prejudice. Only let IRS certify as to the completeness of the admin record before the Court, or supplement what’s there if it isn’t complete. And move for summary J based on the certified record.

Oh, and Doris can “…file (1) any objections she has to the administrative record that the Commissioner has filed, and (2) a response to his motion and a cross-motion for summary judgment.” Order, at p. 5.

Except I’m sure Judge Gustafson knows the immediately foregoing hereinabove paragraph (as my high-priced colleagues would say) might as well be written in Old High Glagolithic buchstabe as far as Doris is concerned.

So he tells Ms. Servoss and her minions to send Doris “ another copy of the ‘clinic letter’” she already got, and please to get help from a LITC. Or call Judge Gustafson.

He’ll turn off the headlights.

Judge Albert G (“Scholar Al”) Lauber won’t back down. True, his order in High Point Holdings, LLC, High Point Land Manager, LLC, Tax Matters Partner, Docket No. 10896-17, filed 5/15/20, was more likely than not drafted and in the hot teletubbying hands of the hardlaboring clerks, formerly at The Glasshouse, when 11 Cir unloaded on Judge Pugh in Oakbrook the other day.

Maybe High Point has no golf course. Or perhaps that game is infra dig. to one who holds a Master of Arts degree from Clare College, Cambridge.

Howbeit, PBBM and the Coalholders are front-and-center. For PBBM, which did have a golf course (look out, Tax Court, fore!), see my blogpost “Thanks a Lot, Judge,” 10/11/16, and pick up on 5 Cir affirming, PBBM-Rose Hill, Limited; PBBM Corporation, Tax Matters Partner, No. 17-60276, 8/14/18.

For the Coalholders, who had no golf course but only a couple old strip-mined Tennessee hollers (hi, Judge Holmes) and cellphone towers, see my blogpost “Diamonds Are Forever,” 10/28/19.

High Point loses on perpetuity, of course; no post-granting split of extinguishment cash, defective savings clause, and all that.

So we shall see if 11 Cir or 5 Cir. wins the jumpball if High Point appeals, because just maybe the Supremes get to weigh in, and do a conflict-amongst-the-circuits silt-stir.

Stirring times indeed.

Please credit my colleague Peter Reilly, CPA, Forbes’ intrepid blogger, and please do not blame him for this dreadful pun, for giving me the scoop on Champions Retreat Golf Founders, LLC v. Commissioner, No. 18-14817 (11th Cir. 2020).

As always, for the backstory see my blog, herein “Not Endangered, Except the Benderdinker,” 9/10/18.

The Elevenses, apparently avid followers of “the ‘umblin’ game,” ruled as follows. “Without the golf course, this easement would easily meet these criteria. Because the Code does not disqualify an easement just because it includes a golf course, we reverse the Tax Court’s decision and remand for determination of the proper amount of the deduction.” Decision, at p. 2.

I’ll let my readers decide if the Elevenses’ ruling was for the birds, namely, “…eastern whip-poor-will, brown-headed nuthatch, red-headed woodpecker, and prothonotary warbler. The expert saw a wood duck with fledglings, suggesting on-site breeding. The Commissioner’s expert saw a wood stork—a federally listed endangered species—though he opined it was just passing through.” Decision, at p. 10.

Remember, Reg. 1.170A-14(d)(3)(i) wants the protected area to stay wild and let the endangered or threatened to continue using same.

There’s lots of threatened squirrels, and the Elevenses lay into Tax Court for their disregard of the denseflower knotweed, Decision, at p. 13. The Elevenses wax eloquent about said knotweed: as I do not have allergies of the sort the knotweed might kick up, I cannot state with Chaucer that it is a species in “which vertu engendred is the flour.” But here’s the story: “Moreover, the relevant question is not so much whether chemicals from the course may harm the knotweed, but whether the easement improves the chance that the knotweed will be preserved. The answer is yes for two reasons: first, because the obligation to use best environmental practices would not exist without the easement; and second, because unrestrained development of the land where the knotweed is located would pose a greater risk than the golf course.” Decision, at p. 14.

To cap it off, the Elevenses chastise Judge Pugh’s apparent ruling that a bird should be seen if not heard. “The court also ignored a bird that was heard but not seen. The court did not explain how a bird could be heard if not present on or at least near the property.” Decision, at p. 15.

In 11 Cir, the bird is the word. They really don’t care about the Benderdinker; not Word One anent the same.

Reversed and remanded, to try the valuation issue.

In consequence whereof, I shorten the odds on Judge Mark V Holmes’ “try the valuation and forget perpetuity games” dissent in Oakbrook winning on appeal to 6 Cir from 3 to 1 to 6 to 5. Get your money on before Las Vegas and the parimutuels take it off the boards altogether.

Many thanks again, Mr. Reilly. To you and to all my readers, stay safe, stay strong!

No, the title hereof is not a typo; today we have conjoined promoters of accountable tool plans, Bruce W. Lemay, 2020 T. C. Memo. 57, and Allen R. Davison, 2020 T. C. Memo. 58, both filed 5/14/20, being hit for Section 6700 promoting bogus dodges chops.

A tool plan is a purportedly an accountable employee expense reimbursement plan, per Section 62(a)(2). If the employee purchases tools for use in the course of employment, for which the employee receives reimbursement from the employer, the reimbursement is not taxable as wages. Also, the employer need not collect or pay over FICA/FUTA/ITW. Primary industries where this would sell were “heating, ventilation, and air conditioning industry, as well as the automotive and trucking industries.” 2020 T. C. Memo. 58, at pp. 14-15.

Of course, legitimate accountables require substantiation and repayment to employer of any overpayments. Anything else is disguised wages, and taxable accordingly. Those who promote phonies get chopped heavily.

Bruce, insurance guy, started to check out these plans, and found they were a wee bit dodgy. He teamed up with old friend Allen, lawyer and CPA, and started selling these plans. But they claimed 35% of employee’s wages was reimbursement, had employees claim old tools, new tools, tools not used in employment, took original prices (not FMV) and didn’t account for depreciation, and never reimbursed employers.

Allen and Bruce went to some legit accounting and law firms, and were told their deal didn’t fly. Allen and Bruce never told their customers. Allen and Bruce get enjoined by IRS, and chopped.

IRS wants to levy, but hold off actually grabbing until the Forms 6118 refund claims Bruce and Allen filed get sorted out, even though more than the statutory six months have passed and neither Bruce nor Allen sued.

There was no prior opportunity to contest liability, so Bruce and Allen get de novo, burden of proof on IRS, preponderance of evidence the standard. IRS must show “…(1) organized (or assisted in the organization of) or participated (directly or indirectly) in the sale of an interest in an investment plan or arrangement, or any other plan or arrangement and (2) made material statements concerning the ‘tax benefits’ to be derived from that plan or arrangement that petitioner knew or had reason to know were false. See sec. 6700(a).” 2020 T. C. Memo. 58, at p. 48. (Footnote omitted).

While “plan or arrangement” isn’t defined in the statute, courts have read the term broadly to include any kind of tax-cutting dodge. And this tool business sure is.

Allen and Bruce both had the education, and the shoot-downs from the accounting and legal firms they talked to, to know their deals were shady. IRS doesn’t have to prove any particular person relied what Brice and Allen told them, but only that the truth would have had an impact on a reasonable taxpayer’s decision to do this deal.

IRS wins.

Judge Colvin kicks Martin D. Kirkley and Sheila G. Kirkley, 2020 T. C. Memo. 57, filed 5/13/20, back to Appeals. Mart and Sheila owe the Feds around $3 million from their Sub S, and don’t deny it. They want an IA, but only have around $3K per mensem wherewith to pay, and one bank denied their home equity loan.

Mart and Sheila went to Appeals, but the SO said they had to sell their house and some land their Sub S owned before they could get an IA.

No, says Judge Colvin.

“IRM pt. 5.14.1.4(5) states in pertinent part that the SO should ‘explore the possibility of liquidating or borrowing against * * * assets’ when considering an installment agreement “unless * * * the asset is necessary for the production of income or the health and welfare of the family.’ The property listed to be sold in… the notice of determination includes property used by petitioners’ S corporation and petitioners’ principal residence. The record does not show whether the SO considered whether those properties were ‘asset[s] necessary for the production of income or the health and welfare of the family.’

“IRM pt. 5.14.2.1.2(3) states that when a taxpayer has equity in assets ‘the taxpayer will normally be required to make a good faith attempt to utilize equity before the Service [IRS] will approve a’ partial payment installment agreement (i.e., a payment plan where the taxpayer pays less than the total outstanding liability). However, IRM pt. 5.14.2.1.2(5) states that when the taxpayer cannot ‘secure a loan or liquidate an asset following a good faith attempt to do so, the * * * [SO] will need to make a seizure/levy determination’. IRM pt. 5.14.2.1.2 does not require taxpayers to liquidate all of their assets; instead, it requires that the SO make a ‘levy determination’. Making a levy determination is not the same thing as imposing a levy. Budish v. Commissioner, T.C. Memo. 2014-239, at *19, *22, *25. Thus, IRM pt. 5.14.2.1.2 does not support the SO’s conclusion that petitioners were required to liquidate all their assets before the IRS would accept an installment agreement.” 2020 T. C. Memo. 57, at pp. 10-11. For the Budish case, see my blogpost “Cast in Bronze,” 11/24/14.

And the SO’s notes are so skimpy one can’t tell if or how she did the Section 6330(c)(3)(C) no more intrusive than necessary test.

Remanded. Note to SO – If at all possible, make the deal.

Now for the lien/levy. Mart and Sheila got a NITL and a NFTL. They sent in the Form 12153 timely on the NITL (levy), but 18 (count ‘em, 18) days too late for the NFTL (lien). Judge Colvin wants to know what effect the late lien CDP request has on jurisdiction. And he cites some cases.

Now I’m not giving advice to Mart and Sheila’s trusty attorney, who is doing great. But he might want to consider maybe taking a wee quick peek at my blogpost “Le Quinzième Juillet,” 4/10/20. Equitable tolling of the SOL won’t work for petitions from SNODs or NITLs, because statutory stays are involved, and Anti-Injunction Act considerations arise. But this is a NFTL: there’s no stay of collection. And the issue for the timely Form 12153 is the same for NFTL and NITL: did the SO abuse her discretion?

I never knew IRS was a fan of Woody Guthrie’s. But I do know that STJ Lewis (“Wotta Name!”) Carluzzo, like the late great Woody, “don’t like dictators not much” his own self.

So when IRS claims that the Section 6721(e) check-raise takes the Section 6721(a) $250 a throw for nonfiling of info returns chop to $500 a throw for willfulness by electricity sans Boss Hoss, STJ Lew isn’t having it.

Here’s Soccer Garage, Inc., 6946-19SL, filed 5/13/20. The Soccers failed to file the info returns when IRS asked, so they hit the Soccers with the chops and a motion for summary J. IRS claims Section 6751(b) un-Boss Hosses Section 6721 because computed electronically.

“Respondent’s motion proceeds as though petitioner not only failed to satisfy a filing obligation, but intentionally disregarded that obligation. According to respondent’s motion, supervisory approval did not precede the assessment of the penalties. According to respondent, ‘the section 6721 penalty is one automatically calculated through electronic means and may be assessed without written supervisory approval’. See sec. 6751(b)(2).

“Section 6721(a) imposes a penalty of $250 for each failure to file an information return with respondent on or before the required filing date. Sec. 6721(a)(2)(A). If the employer intentionally disregards the filing requirement set forth in section 6721(a)(2), then section 6721(e) increases the penalty with respect to each failure that would otherwise be calculated under section 6721(a) to $500, or, if greater, 10% of the aggregate amount of the items required to be reported correctly. Sec. 6721(e). As relevant, a failure to file correct information returns under code section 6721(e) is due to ‘intentional disregard if it is a knowing or willful * * * failure to file timely’. Sec. 301.6721-1(f)(2), Proced. & Admin. Regs. Whether a person knowingly or willfully fails to file timely ‘is determined on the basis of all the facts and circumstances in the particular case.’ Id. In this case, we are called upon to resolve the parties’ dispute over the assessment of section 6721(e) penalties.” Order, at p. 2.

IRS’ electronic mind-reader, huh? Not for summary J.

Not while STJ Lew is on the watch.

“It would seem that somewhere in the process of the assessment of a section 6721(e) penalty a human being is required to consider ‘all of the facts and circumstances’ alluded to in the regulation in order to determine whether a taxpayer’s ’disregard’ was ’intentional’. According to respondent, that didn’t happen in this case. If, as respondent’s motion suggests, human input is not required because intentional disregard can be established by inference, then respondent is not entitled to a finding that petitioner intentionally disregarded its filing obligations at this stage of the proceedings.” Order, at pp. 2-3.

Of course, as an assessable, Section 6721 liability can be contested at a CDP, because no prior opportunity to contest, per Section 6330(c)(2)(B).

And intention and willfulness are obviously fact-driven issues, so no summary J.

No, IRS, the whole country hadn’t ought to be run by electricity.

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.

Here’s the second half of Oakbrook Land Holdings, LLC, William Duane Horton, Tax Matters Partner, 2020 T. C. Memo. 54, filed 5/12/20.

Judge Mark V Holmes finds IRS interpreted reg 1.170A-14(g)(6)(ii) correctly; the 501(c)(3) guardian of the conservation easement must get the proportion of the FMV of the property at the date of judicial extinguishment that is the worth of the easement, and not the absolute value at date of granting.

Conservation easements are special, because of the public interest (tax-subsidized) in keeping them. Ordinary easements can be extinguished by mutual agreement; these can’t be. But circumstances may arise where the easement cannot be preserved.

What to do? Split the proceeds. But how?

“The Commissioner would be happier with a regulation that said ‘proportionate share’ instead of ‘proportionate value,’ and Oakbrook would be happier with a regulation that deleted the word ‘proportionate’ from the phrase ‘proportionate value.’ It argues that we should hold that an easement’s conservation purpose would be protected in perpetuity so long as the FMV of a donee’s property interest equals the value of the perpetual conservation restriction at the time of the gift. But ‘proportionate’ isn’t the only part of the regulation that Oakbrook’s reading would have us cut out–it would also force us to excise the rest of the key sentence—‘bears to the value of the property as a whole at that time.’ Sec. 1.170A-14(g)(6)(ii), Income Tax Regs. This reading would have us allocate proceeds through the use of subtraction, not multiplication. Treasury’s regulation writers, however, know how to command subtraction. See, e.g., sec. 1.422-1(a)(2)(ii), Income Tax Regs. (‘[C]apital gain or loss must be recognized * * * to the extent of the difference between the amount realized from such transfer and the adjusted basis of such share’ (emphasis added)). And reading “proportionate” out of “proportionate value”–much less effectively excising an entire chunk of a sentence of the regulation–runs afoul of the traditional rule that courts should attempt to give meaning to every word of a regulation.” 2020 T. C. Memo. 54, at pp. 22-23. (Citation omitted).

Whatever the scenario, the deed falls foul of the reg. “Oakbrook’s Deed violates the regulation because the Conservancy must be entitled to any proceeds from extinguishment or condemnation that are at least equal to the total proceeds (unadjusted by the value of any of Oakbrook’s improvements), multiplied by a fraction defined by the ratio of the FMV of the easement to the FMV of the unencumbered property determined as of the date of the Deed.” 2020 T. C. Memo. 54, at pp. 40-41.

But, of course, Oakbrook isn’t done if 6 Cir reverses 154 T. C. 10. Judge Holmes wrote their decision for them. See my blogpost “They Always Must Be With Us,” of even date herewith, as my high-priced colleagues would say.

Howbeit, Oakbrook and Billy D reasonably relied on the old PLRs, and did everything they could to make sure the deal was OK. So no chops, whatever happens.

John Keats gave voice to Reg. 1.170A-14(g)(6): the thing of beauty must always be with us, or, if extinguished, the 501(c)(3) has to get its fair share of the boodle. So today we get a double helping of Oakbrook Land Holdings, LLC, William Duane Horton, Tax Matters Partner.

Oakbrook is another fixed-price share if judicially extinguished, rather than a proportion.

Let’s start with 154 T. C. 10. Judge Albert G (“Scholar Al”) Lauber, writing for the majority, fills up with Chevron, and allows that Treasury properly considered the 700 pages of commentary on the reg when first proposed. Therefore the Administrative Procedures Act notice-and-comment provision was complied with. And Judge Scholar Al devotes some commentary to the New York Landmarks Conservancy’s proposal, which suggested dropping the whole thing, so I’ll give a shout-out to its present President, my friend Ms Peg Breen. See 154 T. C. 10, at p. 22.

Judges Foley, Gale, Thornton, Paris, Morrison, Kerrigan, Buch, Nega, Pugh, Ashford, and Copeland are down with this. Judge Gustafson likes parts A, B, C, D.1, and D.2, but has nothing to say about the rest.

Judge Emin (“eminent”) Toro says the statute covers the problem, so concurs in the result (dumping the deduction). No reason to go behind the statute and examine the reg. He doesn’t like the Chevron analysis. I’ll leave that to the law review writers. Judge Urda is on board with the concurrence, and Judge Jones likes Part I thereof.

But there’s a dissent. Judge Mark V Holmes may be relegated to senior status, but he tried the case and wrote the opinion (2020 T. C. Memo. 54, of which more later), so he weighs in. And how! Treasury gave a nod-and-a-wink to the comments to the reg. Even if the reg passes procedural tests, substantively it destroys a whole forest of conservation easement deductions. And Treasury overlooked valid comments; while an agency doesn’t have to respond to everything, it must consider serious things. The incantation that all were considered isn’t sufficient. And like a good neighbor, State Farm is there. The four-part State Farm test is lacking here.

And Judge Holmes cuts to the chase: “Conservation-easement cases might have been more reasonably resolved case-by-case in contests of valuation. The syndicated conservation-easement deals with wildly inflated deductions on land bought at much lower prices would seem perfectly fine fodder for feeding into a valuation grinder. Valuation law is reasonably well known, and valuation cases are exceptionally capable of settlement.

“Congress, however, enacted these sections of the Code and presumably wanted reasonably valued conservation easements to be allowed. Yet we’ve come to a point where we are disallowing a great many conservation-easement deductions altogether, not for exaggeration of their value or lack of conservation purpose, but because of very contestable readings of what it means for an easement to be perpetual.” 154 T. C. 10, at pp. 126-127.

What the majority does is insert invalidity into the overvaluation calculation.

“I fear that our efforts to clear cut and brush hog our way out of the volume of conservation-easement cases we have to deal with has left us a field far stumpier than when we began.” 154 T. C. 10, at p. 128.

This case is Golsenized to 6 Cir. I’ll bet there’s an appeal. And I make the morning line 3 to 1 on Judge Holmes. And I’ll even forgive him “just a couple years ago.” 154 T. C.10, at p. 110.

A couple weeks ago (hi, Judge Holmes) I celebrated the ninetieth birthday of Steven Sondheim with ASTEP, a most worthy cause that even pried a couple kopeks out of my notoriously tight fist. And today we have a sequel to Steve’s (and Richard Rodgers’) 1965 opus.

Here’s Barclay L. Douglas, Docket No. 22207-18, filed 5/12/20, a special day for a dear one far away. But Barclay is something else. I’ll let Judge Albert G (“Scholar Al”) Lauber take up Barc’s story.

“Counsel for respondent notes that petitioner is a finance professional who had substantial income during 2011-2016, and that his failure to file returns reporting that income have generated deficiencies and additions to tax that exceed $1 million.” Order, at p. 2. Un bello spendere, as they say in super-Tuscan vineyards.

Back last October, IRS tried to toss Barc for non-prosecution after extensive ducking, but Judge Scholar Al ran a phoneathon, where Barc and IRS promised to work and play well together. Judge Scholar Al gave them a continuance, and told them to check in with him in January.

IRS then reported that Barc was MIA. Judge Scholar Al issued an order to Barc to get with it or get tossed.

“On March 16, 2020, respondent’s counsel filed a status report representing that petitioner had continued in his refusal to respond to phone calls and letters.” Order, at p. 2. IRS’ counsel listed a bunch of tries, but Barc laid low. So Judge Scholar Al again told Barc to play nice or get tossed.

“On May 8, 2020, respondent filed his second Motion to Dismiss for Failure to Properly Prosecute. Counsel for respondent represents that petitioner recently telephoned him inquiring about the status of the case and stating that: (1) he has engaged an accountant to prepare returns for the 2011-2016 tax years at issue, but that the returns are not yet compete; (2) he would still like to meet with the revenue agent assigned to this case; and (3) he would object to the granting of a motion to dismiss for lack of prosecution.” Order, at p. 2.

IRS’ counsel says Barc is waltzing, so stop the music.

But Barc is saved by the pandemic. It’s an ill wind, and all like that.

“While respondent’s contentions have force, we will give petitioner one final chance to avoid dismissal of this case, influenced in part by concerns surrounding the COVID-19 epidemic. If petitioner wishes to avoid dismissal of this case he must see to it that certain steps are taken by the deadlines set in this Order.” Order, at p. 2.

So let Barc get his accountant to give IRS Form 2848 POA, and talk about when these returns get filed. And report back at the end of June.

Judge David Gustafson could have done no more.