Attorney-at-Law

TECHNICAL FOULS

In Uncategorized on 10/07/2020 at 13:56

There are a couple these (hi, Judge Holmes) today. I know, my readers, few in number but strong in stomach, will cry out as one “Those who read it don’t need it, and those who need it won’t read it!” But I have to try; to which they will again reply as one “Nous n’en voyons pas la necessité.”

First up, Richard W. Bandler, 21723-18, filed 10/7/20. Richard moves to amend his petition. Ch J Maurice B (Mighty Mo”) Foley whistles the play dead. “… the motion for leave was not accompanied by the proposed amendment to the pleading as required under Tax Court Rule 41(a).” Order, at p. 1. Note also that Rule 41(a) provides “(A) motion for leave to amend a pleading shall state the reasons for the amendment and shall be accompanied by the proposed amendment. The amendment to the pleading shall not be incorporated into the motion but rather shall be separately set forth and consistent with the requirements of Rule 23 regarding form and style of papers filed with the Court.”

Taishoff asks “why separately”? Our State court practice always included the proposed amended pleading in the motion, so the Judge (or more usually the Judge’s overworked law clerk) didn’t have to flip back and forth between documents.  Note FRCP 15 has no such prohibition as Rule 41(a).

Second, Jaroslaw Janusz Waszczuk, Docket No. 23105-18W, filed 10/7/20. This is JJ’s second appearance in this my blog. Last time out, JJ got tossed. See my blogpost “Blown or Tossed,”7/9/19. JJ wants to appeal the toss to DC Cir, but doesn’t want to pay the filing fee for the appeal, and asks Ch J Maurice B (“Mighty Mo”) Foley for a waiver. This is a nonstarter.

“…petitioner filed this Court’s form for an Application for Waiver of Filing Fee (application). The filing of that application to request a waiver of the filing fee for the petitioner’s appeal is procedurally improper, as that form may be used only to request the waiver of this Court’s fee for filing a petition. Accordingly, we will strike petitioner’s application from the record.” Order, at p. 1.

JJ, try Form 4 on the Appellate Rules Forms page. See also FRAP 24.

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