Attorney-at-Law

THE PLIGHT OF THE PRO SE

In Uncategorized on 07/27/2020 at 17:23

It took me almost seven years into my professional career to begin to learn the necessary detachment to do my job effectively. But I so internalized the lesson that the plight of the self-represented hardly swam into my ken otherwise than as a cause for a grimace and a shake of the head.

Only as I grew older and saw a lot more did I realize how what is to the practitioner so obvious that it doesn’t need even a random thought is to the pro se an insuperable obstacle. The sea through which we sail on a beam reach with one hand lazily on the tiller is Scylla and Charybdis on steroids to the self-represented.

Two cases today. Designated hitters; thanks to Judge Gustafson for making it easy.

First, Walter Nicklaus Cline, 16947-18W, filed 7/27/20. It’s part of a coupled entry with Docket No. 16605-18W. Walt’s been here before: see my blogpost “Rejection and Denial,” 3/16/20. Walt snail-mailed what Judge Gustafson recharacterizes as a delayed-by-COVID19 Rule 162 reconsideration, which Judge Gustafson denies.

The point of Walt’s motion is what the pro se’s plight is about.

“Mr. Cline’s motion states, ‘I have been told I cannot appeal.’ We do not know who has so advised Mr. Cline, and we do not know why this would be so. This case is not an unappealable ‘small tax case’, cf. I.R.C. sec. 7463(b). The deadline for filing a notice of appeal in this case would be governed by the interaction of I.R.C. sec. 7483 and Rule 13(a)(1) of the Federal Rules of Appellate Procedure. See Tax Court Rule 190(a).” Order, at p. 1.

Walt might make a COVID-19 try for extension of time per FRAP§4(a)(6). And Judge Gustafson could have treated Walt’s motion as a notice of appeal. See my blogpost “Go For It,” 1/23/12.

Next is the panic induced by the simplest correspondence.

Tony Patrinicola & Barbara Patrinicola, Docket No. 498-19, filed 7/27/20, are first-timers here, and obviously first-timers to Tax Court. They send in an “Urgent Action Request,” which Judge Gustafson decodes as a motion to restrain levy, per Section 6213(a).

Trial was set for May. As part of its usual trial prep, IRS subpoenaed Tony’s & Barbara’s bank records. The bank sent Tony & Barbara the usual notice: IRS wants your account records; if you want to object, do so. Tony & Barbara claim IRS is trying to levy.

Yes, Tax Court can enjoin a premature levy.

“In this instance, however, there has been no showing that such a levy has been begun. Rather, X Bank’s letter that prompted petitioners’ motion simply gives them notice that the bank was responding to a ‘request … seeking information’. Order, at p. 2. (Name omitted).

I can’t tell if there has been a Branerton play-nice from the docket search. There are no discovery motions, but the docket does show Tony is an accomplished epistolarian.  It’s unusual if there were no discussions about voluntary production of bank records, but maybe IRS’ counsel had reasons.

The effect is what concerns me. Even the gentle wording of the bank’s notice (which you should read for yourself) caused panic.

 

 

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