In Uncategorized on 10/26/2020 at 16:33

I haven’t given out any Taishoff “Good Try”s lately, and today is not the day. The problem is, that Judge David Gustafson put on the brakes at the hold line with this designated hitter.

Dean Kalivas, Docket No. 25934-17, filed 10/26/20, missed the deadline last week for amending his petition, as you’ll remember from my blogpost “Judge on a Tear- Frivolite Beware!,” 10/20/20.  

Now IRS tries it on. IRS three (count ’em, three) weeks ago, tries a motion to require Dean to pony up paper or electrons for four (count ’em, four) matters at issue. Dean doesn’t respond to Judge Gustafson, although electronically enabled at Tax Court. He does send IRS a billet doux, wherein he states he has no paper for items 1, 2, and 4, and nothing beyond what he already handed over for item 3.

IRS says “requests as to items 3 and 4 are moot.” Fair enough. They also want Dean precluded from putting in any paper for any issue where he’s said he has none, except what he’s already given IRS. Judge Gustafson obliges.

“It is entirely reasonable to grant the additional relief that the Commissioner requests–i.e., to preclude Mr. Kalivas from producing at trial documents that he failed to produce during discovery.” Order, at p. 3. And he takes IRS at its word about the letter Dean sent IRS, but not to Judge Gustafson.

Item 1 involves money Dean claims is a loan, but IRS claims is income. Item 2 is Sched C and Sched E deductions.

But now IRS gets crafty.

IRS’ counsel wants Judge Gustafson to order that “…the issues to which respondent’s discovery request pertains shall be taken as established as set forth in the notice of deficiency dated September 12, 2017.” Order, at p. 3.

In other words, win your contested case without a trial, especially as to deductions that may be justified without paper; what’s a little case like Cohan among friends?

Judge Gustafson cuts IRS’ counsel down like an outfielder throwing a strike ahead of a sliding baserunner.

“…we do not ‘take as established’ (1) the taxability of the payments from R McK nor (2) Mr. Kalivas’s non-entitlement to additional Schedule C and E expense deductions.” Order, at pp. 3-4. (Name omitted).

But IRS can try again. I suggest after trial. And IRS’ counsel isn’t getting a Taishoff “Good Try,” even third class, for that one.

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