Attorney-at-Law

JUDGE ON A TEAR – FRIVOLITE BEWARE!

In Uncategorized on 10/20/2020 at 17:35

That Obliging Jurist, Judge David Gustafson, is on another tear. This one takes the form of two (count ’em, two) designated hitters. One target is a frivolite, and the other a trifle casual with amending his petition. Judge Gustafson has scant patience for either.

Leonard William Tobin, Docket No. 19687-19, filed 10/20/20, wants IRS to admit “… largely purported statements of law. Moreover, they–like the contentions in his petition–are frivolous statements to the effect that his income is not subject to income tax because it is not ‘federally privileged’.” Order, at p. 1.

Remember, “Rule 90(a) permits requests for admission ‘only if such matters … relate to statements … of fact or of the application of law to fact.'” Order, at p.1.

So IRS gets the protective order it wants, and need not respond to Leonard William’s frivolities.

Of course, Leonard William is an old-time rounder, with no fewer than fourteen (count ’em, fourteen) orders to his debit. So Judge Gustafson shows Leonard William the Section 6673 yellow card, and politely suggests Leonard William eschew frivolity and “… prepare instead to present any non-frivolous arguments that he can present in good faith, such as proving his entitlement to deductions or credits not allowed in the IRS’s notice of deficiency.” Order, at p. 2.

Judge, don’t hang by anything sensitive until he does.  

Next is Dean Kalivas, Docket No. 25934-17, filed 10/20/20, and at first blush it looks like Dean may have a valid point. Dean is on for trial next month, but 49 (count ’em, 49) days before trial, Dean files a document styled “Petitioner’s Motion to Allow Evidence at Trial of Net Operating Losses as Offsets to Alleged Tax Liabilities for Years 2008-2013″ (Doc. 54).” Order, at p. 1.

As I can’t see the papers, I don’t know if this is like the famous Status Report with Attachments in the Nature of Evidence, unknown to the Tax Court Rules but nevertheless beloved by IRS, but barred from petitioners, some of whom actually pay IRS’ salaries. See my blogpost “‘Discussion, Deliberation,”‘ 9/24/20.

But Judge Gustafson did read it. “Because the motion was in the nature of a motion for leave to file an amendment to the petition stating an additional issue, we issued our order dated October 1, 2020 (Doc. 58), directing the Clerk of the Court to recharacterize petitioner’s filing as a motion for leave to file an amendment to the petition.” Order, at p. 1.

But said Order did more. Judge Gustafson gave Dean a scheduling order, when to lodge his proposed amendment, and when and how to serve it (overnight PDS, with an electronic boost). But no delays allowed, IRS having a scant ten days to respond.

Dean lodges and serves nothing and today is DD-Day. Wherefore, “petitioner’s motion for leave to file an amendment to the petition (Doc. 54) is denied, (a) for the reason that petitioner failed to comply with our order (Doc. 54), Rule 41(a), and Rule 34(b)(4), and (b) for the additional reasons stated in respondent’s response (Doc. 65).” Order, at p. 2.

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