Attorney-at-Law

“ON ILKLA MOOR, BATTAT”

In Uncategorized on 10/02/2020 at 17:37

When I welcomed Judge Patrick J (Scholar Pat”) Urda to the Glasshouse bench two years ago today, I treated (if that is the word) my readers to an egregious pun, while disclaiming any intention of being a punster (see my blogpost “Welcome, Judge Urda, 10/2/18).

But today, honoring His Honor’s second anniversary illuminating us all from 400 Second Street, NW, Andrea Finegan-Bryan, Docket No. 17566-18, filed 10/2/20, gives me a golden opportunity for another. I doubt either Ms Finegan-Bryan or Judge Scholar Pat has any connection with Yorkshire or the Yorkie national anthem whose title I misquote at the head hereof.

However, as there’s neither opinion nor designated hitter today, here goes.

IRS concedes Ms. Finegan-Bryan’s case, but wants Ms Finegan-Bryan to drop her motion for Judge Scholar Pat to recuse himself. Nothing wrong with that; to memorialize the concession, there has to be a decision and order, and a judge has to sign it.

“In her motion, Ms. Finegan-Bryan asserts that the President’s authority under section 7443(f) of the Internal Revenue Code to remove Tax Court judges violates the Constitution’s separation of powers because separation of powers precludes a government actor exercising one power from removing another government act or exercising a different power. She argues that we should declare section 7443(f) unconstitutional and recuse ourselves from consideration of this case until the alleged constitutional infirmity is cured.

“Section 7443(f) provides that ‘[j]udges of the Tax Court may be removed by the President, after notice and opportunity for public hearing, for inefficiency, neglect of duty, or malfeasance in office, but for no other cause.'” Order, at p. 1.

Sound familiar? It did to Judge Scholar Pat.

“We have held that presidential authority to remove Tax Court judges for cause under section 7443(f) does not violate the Constitution’s separation of powers and that we need not recuse ourselves. See Battat v. Commissioner, 148 T.C.32 (2017)….” Order, at p. 1.

Judge Scholar Pat directs us all to leave Battat alone.

I should have taken his advice.

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