In Uncategorized on 07/16/2020 at 16:35

Only yesterday I praised a pair of attorneys, to whom I’d given a Taishoff “good try, third class” a month ago, saying their never-say-die attitude deserves a better cause. See my blogpost “$7 Million, $3.3 Million, Who Cares?” 7/15/20.

I say that again today, as The Jersey Boys go down fighting for Robert Elkins, 2020 T. C. Memo. 110, filed 7/16/20. Bob (that’s Doc Bob) got his OIC bounced, despite being 71 years old, recently and expensively divorced, and having only rapidly declining current income.

Except ex-wife was supporting him handsomely, he kept upping the ante on his OIC, and the SO happened to see the nasty Wall Street Journal.  That alleged dispenser of “fake news” (a nonpolitical comment not found in the record) “…recounted that [Doc Bob’s now-bankrupt but formerly largest nursing home chain in the country] executives had received loans of ‘nearly $60 million–most of it going to Dr. Elkins himself’ that they were never required to pay back. The article further stated that Dr. Elkins used ‘company * * * [i.e., nursing home giant] money contributed to a retirement plan set up for him’ to amass an art collection worth more than $8 million, with pieces being displayed at Dr. Elkins’ home despite being booked as company assets.” 2020 T. C. Memo. 110, at p. 11.

Now I’m sure my hip readers, echoing The Jersey Boys, have yelled “Hearsay! Inadmissible! Declarant not in court! No exception in FRE!” Ah, but trust Judge Patrick J. (“Scholar Pat”) Urda. A CDP is informal, and FRE don’t apply.

“Of course, our Rules provide that a declaration in support of summary judgment ‘shall set forth such facts as would be admissible in evidence’. Rule 121(d). But the Wall Street Journal article, which was attached as an exhibit to the settlement officer’s declaration, does not constitute inadmissible hearsay. Hearsay is a statement offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c). The article is part of the administrative record, which was submitted to this Court not for the truth of the matters asserted but to show the documents that the settlement officer relied upon in making her decision to sustain the rejection of the OIC (and the NFTL filing). The article thus would be admissible at trial or hearing for that purpose. See Fed. R. Evid. 105 (use of evidence admitted for limited purpose must be restricted to that purpose)….” 2020 T. C. Memo. 110, at pp. 27-28. (Citation omitted).

Trier of fact, just disregard that elephant in the courtroom. It’s only there to prove there are such things as elephants.

But interest of the government wins the day. Doc Bob was in with the Delta Trading crowd (the same outfit that figured in the Billyhawk debacle (see my blogpost “The Hawklings Come Home to Roost,” 11/6/17), and the pure-at-heart Alterman escape (see my blogpost “It’s Not Fraud,” 12/1/15). Delta as TMP in the phony LLC hung Doc Bob out to dry in the FPAA, even though he participated, by extending the SOL. So Doc Bob got hit with $10 million in tax, interest, additions and chops.

The fight is over a NFTL. The SO had reason to bounce Doc Bob’s OIC: he was doing unpaid work for his wife’s nursing homes she got in the divorce, and Doc Bob was still living the good life.

It’s a mark of the high regard in which the Jersey Boys are held that they get tough cases like this one. So I say again the title of this blogpost.





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