Let’s all give a hearty Glasshouse welcome to the newest Judge of the “small court,” Judge Alina I. Marshall. She’s taking the seat formerly held by ex-Ch J L Paige (“Iron Fist”) Marvel, who went senior last year. I’m working on a cognomen; watch this space. I look forward to many learned opinions from Judge Marshall.

When the lights go on again all over the world, and the  judges’ cafeteria at the Glasshouse reopens, Judge Travis A. (“Tag”) Greaves should sit down with fellow-Tejano Judge Juan Vasquez over a cup coffee and a piece pie (hi, Judge Holmes), and talk about when lawyers claim they dropped a petition in the mailbox on the last of the magic Ninety Days.

My readers will recall Judge Vasquez’s painstaking review and meticulous day-counting, of a kind found only in religious rituals, more particularly bounded and described in my blogpost “Days of Our Lives,” 1/13/20, where Judge Vasquez let an attorney whom I called then, and will call now, Scotty, off the hook and saved his clients’ petition. But then there was no postmark on Scotty’s envelope.

Today, Judge Tag is much less kindly disposed to the unlucky attorney for Blanca Rivas, 2020 T. C. Memo. 124, filed 8/25/20, whom I’ll call Mo, and who bailed last week.  There was a postmark on his.

Mo dropped the petition in the mailbox on the last day. The postmark was the next day. IRS claims a day late and a lot more than a dollar short.

I am sure he is awaiting The Phone Call.

As the mailing in question took place last year, the current postal issues (which, being political, I will not discuss in this avowedly nonpolitical blog, although I have vociferously stated my views elsewhere) are not in play. I nevertheless caution practitioners to get the USPS cancellation on the envelope. Standing in line at the post office beats The Phone Call; trust me.

Judge Tag: “Petitioner does not contradict that the 90-day period expired [day before postmark] but rather asserts that the deadline to file a petition for redetermination is a ‘claims processing rule’ and equitable tolling applies.” 2020 T. C. Memo. 124, at pp. 2-3.

Before you, my hip readers, yell “nonstarter!” please take pity on Mo. He obviously never read my blogposts “Le Quinzième Juillet,” 4/10/20, as edited, and “Harvard Gets It Right,” 6/29/20. Section 6213 is jurisdictional.

Judge Tag belabors Blanca and Mo with a couple pages (hi again, Judge Holmes) of citations to cases wherein the Circuiteers have continually put paid to any assertion other than “90 days is 90 days, and only a USPS postmark can prove it.”

To begin with, a “huh?” more particularly bounded and described as a query. IC Improvements, LLC, Michael J. Luciano, Tax Matters Partner, Docket No. 4669-20S, filed 8/25/20. IC moves to dismiss, IRS doesn’t object, so Ch J Maurice B (“Mighty Mo”) dismisses, saying nothing else. But what about Section 7459(d)? The “L” suffix is missing, as is the obligatory citation to Wagner, so this isn’t a CDP. Likewise, no “W” suffix or citation to Jacobson, so it isn’t a blower case (assuming an LLC can maintain a whistleblower case; see Section 7623(b)(1)). Therefore, why no entry of decision for the amount stated in deficiency, or statement that from the record Ch J Mighty Mo can’t compute what the decision should be?

Next, STJ Diana L (“The Taxpayer’s Friend”) Leyden has four (count ’em, four) dubious Section 6751(b) Boss Hosses. Donald Bound and Frances Bound, Deceased, Docket No. 18743-19S, filed 8/25/20, has an unsigned CPAF dated after the Letter 915, 30-day. Same Michelle Y. Love, and William Love III, Docket No. 16713-19S, of even date therewith. IRS claims Joseph A. Albright and Elizabeth Albright, Docket No. 1709-20S, filed 8/25/20 never responded to the 30-day, so no IRS employee was involved, thus the chop was electronically computed. Ditto Michael Walter Brown and Gloria E. Brown, 1485-20S, filed 8/25/20. STJ Di wants the 30-day and the Revenue Agent Report. Looks like STJ Di will corral the Boss Hosses.

Finally, it’s truly an ill wind that blows no one any good. If the COVID-19 disaster brings us viable teletrials, then no more time will be wasted telling people with deficiencies north of $50K, who seek venue in localities reserved for small claimers, to look elsewhere. With teletrials, geography is irrelevant. Now if only there were a way for the public to observe teletrials, as required by Sections 7458 and 7461….

The State of Wisconsin Investment Board, Transferee, Docket No. 26867-08, filed 8/24/20, may have transferee liability for the Shockley Broadcasters’ give-and-go with Midcoast, but they go down fighting over prenotice interest.

Their reconsideration request is too late and too prejudicial “… to the Court, to respondent, and to other transferees whose liability has been determined under T. C. Memo 2016-08, filed four years before our opinion in this case.” Order, at p. 2.

The cited T. C. Memo., which I didn’t blog, was a supplement to one I did blog. See my blogpost “Gude Faith, He Maun Fa’ That,” 6/22/15. And I did blog its successor; see my blogpost “Bad Faith, He Maun Definitely Fa’ That,” 1/13/20.

The Investors should have heeded the words of their State song, and “Fight! Fellows! Fight!” Only a lot sooner.

No, I’m not giving you an essay about cost-to-carry, time-value-of-money, or a contango shift in the futures market. Such gambles are beyond my limited scope.

Rather, we have today Sean Patrick Ihndris, Docket No. 6361-19L, filed 3/2/20. No, that date is not an “inadvertent clerical error,” at least, not by me.

Judge Morrison’s order, reposted today on the Tax Court website, reads as follows: “ORDERED that this case will be set for hearing during the calendar call of the Court’s March 23, 2020 Trial Session in Los Angeles, California beginning on Monday, March 23, 2020 at 10:00 a.m. in Room 1167, Edward R. Roybal Center & Federal Building, 255 E. Temple Street, Los Angeles, CA 90012.” Order, at p. 1.

Except.

That calendar call appearance was canceled on 3/11/20. And that order was posted that date. A docket search reveals that the order was reposted today, for what reason I cannot tell.

That’s real backwardation.

I was rereading my blogpost “Make It Easy,” 8/21/20, when I recollected something. I said then to pay attention. I should have taken my own advice.

So I checked the dates in my blogpost aforementioned, and the recollection set off an alarm.

You’ll remember that IRS asked for an extension of time, and got no opposition. That’s absolutely par for the course, because our New York Civility Rules call for granting extensions if reasonable and no prejudice to our client, and I’m sure other jurisdictions have similar prescriptions.

But the date which IRS sought and got unopposed just happens to be the same date when petitioners’ response was due. And IRS’ counsel offered petitioners no additional time.

See my blogposts “Play Nice or Go Home,” 3/20/20, and “Time Sensitivity,” 4/13/20.

Now Judge Gustafson was his usual genteel self in the first of the foregoing instances, and Judge Gale did likewise in the second. Both granted petitioners more time.

But enough is enough. To try to wrongfoot your opponent by getting more time for yourself and using their courtesy to grab time from them is wrong.

I’ve twice called out IRS attorneys for this gameplaying, but apparently the message hasn’t gotten through. So I’ll call out Shannon E. Craft, Esq.

And I’ll give a heads-up to practitioners. If IRS asks for an extension, ask them to stip to additional time for you. And if they refuse, oppose. And tell the Judge that Taishoff sent you.

We’ve noted the Thanksgiving to Christmas electronic lockdown of the Glasshouse while the new whizbang or whatever it is gets rolled out, ramped up, energized, and dropped before the American taxpayer who never did Tax Court any harm. Judges are issuing orders changing deadlines to avoid the holiday void.

Until I spoke with a colleague based in The City by the Bay this afternoon, I was unaware that the new-improved-jazzy case management system that will accompany turkey-and-Santa may omit designated hitters.

Splendid. Top-hole, A-number-one, top of the heap. Perhaps you hear my teeth grinding.

This would make my job materially and substantially harder, and exactly what it would do to help Tax Court operations is nowhere apparent. IRS gets all orders automatically and routes them to the appropriate persons; big law firms and accounting conglomerates can well afford to have an impecunious first-year read 150 to 200 orders and whatever opinions may be every day, digest same and inform the High Command.

I don’t. I can’t. There’s just one of me, and as Sergeant Longry used to say when inappropriately addressed by mere cannonfodder, “I ain’t no sir, I work for a living.” A designated hitter often knocks an hour off my workload. And I’m on deadline.

Of course, there was no beta of this brilliant eruption, as there was none for the new, only-slightly-improved, jazzy website. None of the Glasshouse elite bothered to ask for comment, or inquire of us practitioners and journalists, apparently the meanest of serfs, what we might like to see. The genius barflies, whose sole experience with tax is probably a walk-in and shoebox drop-off at an H&R Block franchise, have decided this on their own.

This impending fiasco brings back a recollection from forty years ago. I can hear a favorite phrase of my late law partner Sid (may he rest in peace), in his cigar-throat rasp redolent of the Lower East Side where he grew up, “Whaddit they do, have a conference wit’ demselves in duh mens’ room?”

IRS wants info more than ten (count ’em, ten) years old made public, but Medtronic, Inc. & Consolidated Subsidiaries, Docket No. 6911-14, filed 8/21/20, says that’s trade secret stuff. And Judge Kathleen Kerrigan, having been assigned trial duty by 8 Cir, buys at least some of Medtronic’s tale.

I’m sure you remember that 8 Cir bounced Medtronic back to Judge Kerrigan, with her 144 (count ’em, 144) pages of carefully-wrought opinion eviscerated in just 13 pages of appellate disdain. No? What a pity! Then see my blogpost “Cut Uncut,” 8/17/18.

Expert testimony will be required, and IRS wants the existing Rule 103 order modified to take the wraps off any info more than 10 years old. Medtronic says no, the stuff is still classified. But Judge Kerrigan having sent the parties off to a play-nice, they agree to some unwrapping.

“Rule 103(a) provides that, upon motion and for good cause, ‘the Court may make any order which justice requires’ to ensure that ‘a trade secret or other information may not be disclosed or be disclosed only in a designated way.’ A protective order is appropriate where the material is the type of information that courts will protect and the requesting party shows good cause for protecting it. Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3rd Cir. 1984); Estate of Murphy v Commissioner, T.C. Memo. 1990-346, 60 T.C.M. (CCH) 73, 75. The goal of this Court is to provide as robust a record as possible while protecting petitioner’s proprietary information.” Order, at p. 2. (Footnote omitted).

Age does not wither nor custom stale what Medtronic wants suppressed from view. Judge Kerrigan crafts cut-outs and overlays, which would be helpful if we had some idea what was covered. But the public should mind its own business when it comes to Medtronic’s secret  business.

Judge Kerrigan knows her every move is being eyeballed from on high. “Taking into consideration the Court’s opinion in this case (T. C. Memo. 2016-112), the Eighth Circuit’s opinion, and the Court’s May 3, 2019 Order, the Protective Order will be modified appropriately, including modifications related to the Pacesetter Agreement.” Order, at p. 3.

Although he subsequently got disbarred, a former associate in the firm wherein I was a partner taught me a very useful lesson (besides don’t lose your license). “If you want somebody to do something, make it easy.”

Now that Obliging Jurist, Judge David Gustafson, is the very embodiment of that principle, which is why I have so styled him.

But today he expresses the wish, I had almost said plaintively, that litigants would do likewise.

First, the background. And the dates matter here. “Our order of August 3, 2020 (Doc. 38), required the Commissioner to file a response to petitioners’ motion for reconsideration (Doc. 37) by August 28, 2020, and required petitioners to file a reply by September 18, 2020. On August 19, 2020, the Commissioner filed an unopposed motion for extension of time (Doc. 39), requesting that we extend his deadline by 21 days (i.e., until September 18, 2020). The motion is silent as to petitioners’ reply deadline.” Order, at p. 1.

The case is Habitat Green Investments, LLC, MM Bulldawg Manager, LLC, Tax Matters Partner, et al., Docket No. 14433-17, filed 8/21/20. Yep, it’s one of those.

Now pay attention, as Judge Holmes would say. Judge David Gustafson has the floor.

“Best practice for such a motion for extension would be for the motion to address not only the deadline at issue but also subsequent deadlines. This would create an occasion for the parties to agree on a schedule and would enable the Court to grant the motion by ‘stamp’ rather than composing an order.” Order, at p. 1.

Nevertheless, and you can almost hear the judicial sigh, Judge Gustafson orders “…that the Commissioner’s motion for extension of time is granted, and that the Commissioner shall file a response to petitioners’ motion for reconsideration no later than September 18, 2020, and that petitioners shall file a reply no later than October 2, 2020.” Order, at p. 1.

Chaps, I don’t want to seem to be piling on after the whistle, but you’ve got heavy-duty bucks on the table, with the prospect of The Phone Call if you blow this case. Why annoy the judge, even one so obliging and even-tempered as Judge David Gustafson?

Besides, the phoneathon with IRS to work out the schedule is billable time.

A correspondent from that august body, the Tax Section of the American Bar Association, the sacred precincts of which I have never entered, asked me how I derive cognomens for judges. I haven’t yet replied, because I’m not entirely sure how I come up with these. For sure, there is no hard-and-fast rule.

Some are easy: Judge Elizabeth A. (“Tex”) Copeland, though not born a Texan, spent the greatest part of her illustrious career in that State. STJ Diana L (“Sidewalks of New York” a/k/a “The Taxpayer’s Friend”) Leyden was formerly New York City Department of Finance Taxpayer Advocate. Ch J Maurice B (“Mighty Mo”) Foley had been informally known as “Mo” to certain practitioners, and those practitioners passed that on to me long before his election to the Chieftainship. Judge Mark V Holmes got “The Great Dissenter” from his namesake Justice Oliver Wendell Holmes, Jr., who was so called.

CSTJ Lewis Carluzzo was easiest of all. Our forename, given to us to avoid confusion with relatives who otherwise spelled our forename, is a point of pride.

But ex-Ch J L Paige (“Iron Fist”) Marvel was extremely difficult. I even ran an online competition. Finally, when I settled on “Iron Fist,” I was dubious, until I heard from a source that her clerks had placed a sculpted iron fist on the Judge’s desk. Likewise finding a cognomen suitable for ex-Ch J Michael B (“Iron Mike”) Thornton was difficult, until I saw in person his laser-sharp focus as he ran the Tax Court Judicial Conference at Duke University some years ago; no detail, however small, escaped him, even in seemingly casual conversation.

That of Judge Mary Ann (“S.E.C. = She Eschews Cognomens”) Cohen is self-explanatory. I asked the Judge once; following an exalted personage, her “nay was nay.”

Judge David Gustafson is The Obliging Jurist because of his obliging nature.

When I applied “Big Jim” to Judge James S Halpern, a colleague who had known the Judge socially from years ago questioned me, because the Judge is not exceptionally tall. I confess I was nonplussed, and still am. In my defense, when it comes to gravitas, Judge Big Jim is second to none.

Now-retired STJ Robert N Armen was “The Judge With a Heart” because of a Sum. Op. back in 2011, when he let someone who raided the kids’ 529s but put the money back after his wife’s tearful intercession off the 10% whatever.

Some take time. And a lot of thought. To obtain light touch, with no disrespect, isn’t easy.

And as there was neither opinion nor designated hitter today, I thought my correspondent might appreciate a public reply.