Attorney-at-Law

VACATION CHECKLIST

In Uncategorized on 10/09/2020 at 13:18

No, not another one of those “what to pack for the cruise” thinly-concealed adverts for stuff you’ll never use again. Today, STJ Peter (“HB”) Panuthos (for the “HB” story, see my blogpost “Old-Time Head-Banging – Part Deux,” 9/4/20) gives the right-about-face to Shona S. Pendse, Docket No. 25665-17, filed 10/9/20.

Shona stiped out 8/30 when COVID-19 teletrial was set for 9/16. The stip said no tax due, no additions, no penalties, no overpayments. Stiped decision entered 9/3.

Shona now files for a vacation of the stiped decision, claiming conditions to do with a barred refund. IRS ripostes with e-mails and documents showing everybody agreed to everything.

So why am I bringing you this tale of settler’s remorse?

Because STJ HB Panuthos, seeing that IRS has gone the mile, goes the twain, thrain and quatrain. This is a checklist for those seeking to overturn a stip, especially one entered into on eve of trial.

To save time and electrons, I’ve omitted the “copious citation of precedent,” but get all the citations for your memo of law file.

Here’s the threshold. “The decision to grant a motion to vacate or revise a decision lies within the discretion of the Court. A motion to vacate is generally not granted absent a showing of unusual circumstances or substantial error, e.g. mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, or other reason justifying relief.” Order, at p. 2.

STJ HB Panuthos says he eyeballed the pictures, descriptions and accounts of the negotiations between the parties, and is satisfied Shona was onboard with the stip.

“We have held that ‘[a] settlement is a contract and, consequently, general principles of contract law determine whether a settlement has been reached.’ In settling a case each party agrees to concede some rights which may have been asserted against the opposing party as consideration for those secured in the settlement agreement.

“A valid settlement, once reached, cannot be repudiated by either party; and after parties have entered into a binding settlement agreement, the actual merits of the settled controversy are without consequence. This Court has declined to set aside a settlement duly executed by the parties and filed with the Court in the absence of fraud, mutual mistake, or other similar ground. Where the parties’ settlement leads to the vacating of an imminent trial date, the Court applies stringent standards to modify or set aside the settlement. In such cases the moving party must satisfy standards akin to those applicable in vacating a judgment entered into by consent. The Court has discretion to set aside a settlement agreement filed with it, but its discretion will not be exercised unless good cause is shown.” Order, at p. 2.

“Hear, read, mark, learn, and inwardly digest,” as a much better writer than I put it.

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