Attorney-at-Law

Archive for November, 2020|Monthly archive page

VIC LUNDY

In Uncategorized on 11/27/2020 at 15:32

He wasn’t a member of the Sheepshead Bay seafood dynasty, beloved of The Girl of My Dreams. How often has she told me of her childhood feasts, standing in the steamy messhall of the above-referred-to dynasts, coat over arms, waiting for the satiated to vacate a table and let her and her family at the goodies. And what meals they were, she says. They improve with the passage of time. But gone, alas, like our youth, too soon.  

No, Vic Lundy is the subject of a panegyric from the GSA, in its pre-political days. Vic, it happens, aside from a CIB and a Purple Heart to his credit, is the architect who designed The Glasshouse at 400 Second Street, NW, and brought the job in on time and on budget; for which he should have gotten at least two more gongs beside the Medal of Freedom Gerry Ford gave him.

Check it out.

LOOK, WE’VE COME THROUGH

In Uncategorized on 11/26/2020 at 14:16

Even though Hugh Wheeler’s 1961 opus thus-entitled got pulled after but five (count ’em, five) performances, the title serves as a headpiece for this Thanksgiving Day.

Vic Lundy’s MidMo masterpiece remains shuttered. Such gatherings as there are remain restricted, subject to the Supremes’ latest pronunciamento.

Still and all, we have much for which to be thankful.

We’ve gotten this far.

Happy Thanksgiving.

 

 

“I DREAMED A DREAM”

In Uncategorized on 11/25/2020 at 15:29

I echo Herbert Kretzmer’s last-millennium lament as I scan the locked-down Tax Court website, and recall my blogpost “Aground in Dawson’s Creek,” 10/20/20.

My dream is a United States Tax Court Bar Association. No, not another magnet for practitioners’ dollars; all of us have seen plenty of those. And not another Continuing Ed vending machine, either. Ditto.

What I dreamed is voices louder than one voice. We all know (if I’m not deluding myself) that changes in the Glasshouse procedures and rules are necessary. COVID-19 rammed the lesson home. And how!

All-electronic filing is necessary. Many courts, Federal and State, have gone all-electronic, with special webpages to provide access for the self-represented. The wet-ink petition and amendments are relics, and should be recalled, if at all, in the next edition of Dubroff and Hellwig. Rule 34 points the way. Time to make it happen.

And geography is irrelevant. Remote trials are happening, and no one has noticed any material degradation in results. If there are any, these should be noted as soon as possible, and publicly, so any can be remedied. But the expense of a traveling court is a real negative. Computer access is easier to provide, and cheaper.

The Stealth Subpoena and kindred deviations from FRCP need to be examined and, where appropriate, harmonized.

Extensions of time, where clients are not prejudiced, should be mandated to be mutual. Our New York State Chief Judge’s Civility Rules have so provided for years. It should not be up to individual judges (thank you again, Judge Emin (“Eminent”) Toro) to police attorneys’ conduct, much less for bloggers to have to waste electrons thereon.

Entry of Appearance for law firms is past due. The oldest New York law firm I know of started in 1797, and I’m sure some even older are flourishing in several jurisdictions. I know Tax Court is a specialized court requiring separate admission for each attorney, but since a current certificate of good standing and fifty Georges is all it takes, why not permit a law firm to enter appearance for all its USTC-admitted attorneys on one form? If it be objected that the hardlaboring clerks can’t send communications to dozens of attorneys in the tax department of a multinational white-shoe, the form can designate a lead (sort of a tax matters partner) who gets everything, but any attorney on the form can cover a routine calendar call or similar show-up. Every firm I know of in any other court can do that, with no ill effects. Of course, showing unprepared, or without authority, for something substantive, without a real good excuse, doesn’t cut it. Ditto for USTCPs, if any are such firms.

More to follow.

But one person saying this is worthless. And other practitioners may have good arguments why any or all of the foregoing lack merit, or need major overhauls.

But without a central forum where all this can be debated, and the wheat separated from the cliché, and where Ch J Maurice B (“Mighty Mo”) Foley and his colleagues can be presented with something better and bigger than ever I could muster, all will remain The Dream I Dreamed.

FINISHING THE PLAY – REDIVIVUS

In Uncategorized on 11/24/2020 at 11:58

I said it here too many years ago: “One sure way to drive a coach bananas is to fail to finish a play.” And pro ses are inordinately prone to such failings. Again and again I see pro ses not returning decision documents that help them. Dismissal for want of prosecution hasn’t the same preclusive effect as a decision explicitly determining the matter.

I’m going through pre-Dawson orders to find blogfodder, as new filings are off the menu until December 28 (those with an ironical bent will note that, among certain persons, December 28 commemorates the slaughter of the innocents).

Michael Patrick O’Donnell, Docket No. 14693-19, filed 11/19/20, doesn’t respond either to IRS or the repeated importunings of Judge David Gustafson’s staff (doubtless as obliging as he is). IRS avers that Michael Patrick has similarly dodged them, doesn’t owe any tax, add-ons or chops, and wants Michael Patrick’s petition tossed.

OK, if IRS says he owes nothing, why should Michael Patrick say or do anything? He might be saying “Just make it go away; how y’all do that is your problem.”

Except.

“…the Commissioner of the IRS filed a ‘Motion to Dismiss for Failure to Properly Prosecute’ (Doc. 9), asserting that any refund otherwise due to Mr. O’Donnell is barred by the statute of limitation (I.R.C. sec. 6511(b)(2)(B))….” Order, at p. 1.

Did Michael Patrick claim a refund was due? Did IRS plead SOL in the answer? In an amendment thereto? On brief? Or is this motion the first time IRS woke up?

Remember the last time I spoke about finishing the play? You may very well not, because it was back in 2012; see my blogpost “Finishing the Play – Part Deux,” 5/10/12.

Then a petitioner was late with the SOL argument, earning the following rebuke from Judge Gale. “Petitioner did not plead the statute of limitations as an affirmative defense as required by Rule 39. Petitioner did not raise the issue during the evidentiary hearing, nor has he at any time moved to amend the pleadings so as to include this omitted affirmative defense. Petitioner’s failure to plead the statute of limitations in his petition or in an amended pleading constitutes a waiver of the issue. Moreover, petitioner’s raising of the issue for the first time on brief would prejudice respondent, who has been deprived of the opportunity to present relevant evidence, such as evidence that petitioner consented to extend the period of limitations. We decline to consider this issue.”

I don’t say arguing the point would have produced a win for Michael Patrick, because there may be facts I don’t know. Maybe IRS did timely plead SOL, but why would they specifically mention SOL in their motion, when all they need say is nothing due to IRS or to Michael Patrick, as is done in countless decision documents?   

Howbeit, petitioners, walking away gives it all up. Even if you hit a walk-off homer, you have to run the bases.

PROLEGOMENA TO A SETTLEMENT

In Uncategorized on 11/23/2020 at 16:44

I’d said that, prior to The Big Sleep on Dawson’s Creek, Tax Court unleashed over one thousand (count ’em, one thousand) orders last Thursday and Friday, so many that the daily orders search function was overwhelmed. And I also said that I’d be strip-mining them, seeking ore to refine for this my blog.

Here’s one nugget, from Judge Mark V Holmes, Renee K. Rood, et al., Docket No. 12033-13, filed 11/20/20. Both Renee and IRS were hopeful that an OIC would solve their problems. But getting there, unlike a Greyhound bus trip, wasn’t half the fun.

“They have not as yet been successful, as various obstacles–including most recently the pandemic–keep emerging. In our last teleconference with the parties we stressed that the making and remaking of offers in compromise that don’t get accepted means that settlement may not be realistic. The Court will adopt respondent’s reasonable suggestion for one last status report, but will then put these cases on a pretrial track aiming for trial in May 2021.” Order, at p. 1.

Yes, there are ever-emerging obstacles, as Dawson’s Creek merges with the Blue Danube to give parties new opportunities for indefinite waltzing. But unless the offers manifest a sense of the ridiculous, or the rejections savor of “my way or the highway,” perhaps mediation via Zoom might bring the parties to “yes,” better than the threat of a trial six months away.

And it might could be maybe so that the mediation takes the form of some gentle judicial head-banging; see my blogpost thus entitled.

“IF ANY”

In Uncategorized on 11/23/2020 at 10:21

The Tax Court website’s “Today’s Opinions” link still displays the usual legend: “Opinions, if any, are posted Monday through Friday after 3:30 PM Eastern time.”

The operative phrase, of course, is “if any.” And we all know there won’t be any opinions until the veil lifts on 12/28/20, and Dawson’s Creek goes unvexed to the sea, or wherever.

The “Today’s Orders” link opens with the same legend for designated hitters, and “if any” rules there as well. “Orders Search” for today’s date yields the melancholy “No orders found”; Poe’s Raven was more cheerful.

Nevertheless, this blog will continue, with what fodder I can grub out, in the absence of the rich fare formerly served up at The Glasshouse in the Wannabe City-State.

THE PAPER IT’S WRITTEN ON

In Uncategorized on 11/20/2020 at 23:52

Stemming the floodwaters of Dawson’s Creek, Ch J Maurice B (“Mighty Mo”) Foley has promulgated some handy hints and hacks for must-files while the Genius Baristas have embargoed electronic filing.

It’s Executive Order 2020-05, dated 11/20/20.  You can file paper, but you need a proper certificate of service to accompany your filing.  And for multiple signatures, high-resolution images or PDF on paper is OK.

But hang onto the stuff for eighteen (count ’em, eighteen) months.

As always, make sure your document is worth the paper it’s written on.

MAYBE I WAS A WEE BIT HARSH

In Uncategorized on 11/20/2020 at 16:47

I’ve been accused of issuing “sardonic” comments. Let’s parse out that word. The dictionary says “grimly cynical, mocking.”

Well, “cynical” maybe; a client’s comptroller, treating me to dinner and a bottle Antinori’s finest (hi, Judge Holmes, and thanks again, David K) once called me that. I replied it was what practicing law does to me. “Mocking”? That’s a bit strong; I hoped I was gentler than that. But “grim”? Never. Perhaps “harsh” sometimes.

Yesterday, I fear I was a bit heavy-handed with Judge James S. (“Big Jim”) Halpern in my blogpost “A Document Never Says What You Think It Says,” 11/19/20. I thought he stood the façade easement Deed on its head, and maybe he did, but it was in a good cause.

Maybe I’m standing his order in 901 South Broadway Limited  Partnership, Standard Development, LLC, Tax Matters Partner, 11/20/20, on its head. Or, to put it better, reading in.

But, on reflection, maybe Judge Big Jim was echoing Judge Holmes’ dissent in Oakbrook, for which see my blogpost “They Always Must Be With Us,” 5/12/20.

I can’t do better than quote Judge Holmes. “Conservation-easement cases might have been more reasonably resolved case-by-case in contests of valuation. The syndicated conservation-easement deals with wildly inflated deductions on land bought at much lower prices would seem perfectly fine fodder for feeding into a valuation grinder. Valuation law is reasonably well known, and valuation cases are exceptionally capable of settlement.

“Congress, however, enacted these sections of the Code and presumably wanted reasonably valued conservation easements to be allowed. Yet we’ve come to a point where we are disallowing a great many conservation-easement deductions altogether, not for exaggeration of their value or lack of conservation purpose, but because of very contestable readings of what it means for an easement to be perpetual.” 154 T. C. 10, at pp. 126-127.”

The bottom line for Judge Big Jim is in his questions 4 and 6: what besides the deemed approval (30-day clause) violates the Section 170(h) restrictions? In short, are we again engaging in “very contestable readings of what it means for an easement to be perpetual”?

IRS fixated on the extinguishment gambit because it was quick and cheap, and IRS’ resources are Congressionally-mandated anemic. Trials take time, and experts cost money.

Note, Judge Big Jim sat out Oakbrook, joining none of the majority, the concurrence, or Judge Holmes’ lonely dissent.  Again, perhaps I’m reading my own views into his order, but I think he has joined in Judge Holmes’ dissent now.

YA CAN’T GET RID OF ME

In Uncategorized on 11/20/2020 at 15:18

I know none of my readers, those few, those mighty few, that band of whatever is appropriately denominated in these syntactically inclusive days, wishes me to retire from the blogfront.

Happily, Lord willing and Dawson’s Creek don’t rise, I need not. I find comfort in the press release dated 10/7/20. The historical Tax Court shall remain, towering o’er the wreck of Time, as the Genius Barristas fuss with electronic filing.

Wherefore, and in consequence thereof, “consistent with current practices, cases will remain electronically viewable.”

There were over one thousand (count ’em, one thousand) orders issued in the last two days. If, among those, some suggestions for improvement of Tax Court Rules of Practice and Procedure, and some miscellaneous quips and quiddities, I cannot find sufficient blogfodder to float over the floodwaters of Dawson’s Creek and the inevitable drying-out thereafter, you really should get rid of me.

But remember, guys. Get those e-filings done before 5:00 ET.

“IT’S AN ORDER, NOT A SUGGESTION”

In Uncategorized on 11/20/2020 at 14:57

No, I didn’t hear that in the Army; the phrase was accompanied neither by colorful metaphor nor deleted expletive. It was in a courtroom in Southern District Bankruptcy Court twenty-plus years ago, and fortunately not directed at me. The late Adlai Stevenson Hardin, BJ, thus admonished my co-counsel, for what dereliction I recall not, but such a rebuke from a courtly jurist sent a shockwave that must have been felt on Quarropas Street. I saw our case settling gently in the water, and looked around for a lifeboat.

But Ch J Maurice B. (“Mighty Mo’) Foley is much gentler than the late BJ Hardin. If a litigant is unhappy with his adversary’s proposed order, even without stating grounds sufficient to be mentioned in denying the order, Ch J Mighty Mo will withhold Tax Court’s mighty hand and outstretched arm.

Here’s Atm Shafiqul Khalid, Docket No. 13967-19W, filed 11/20/20.

IRS wanted the standard Rule 103 protective order a year ago, but Atm opposed it. Back in February, “…respondent proposed certain revisions to the protective order to address petitioner’s concerns. By Reply to Order… petitioner indicated that he still does not agree with the proposed protective order.” Order, at p. 1.

As I don’t know why Atm objects, I can’t comment. The standard Rule 103 has issued without objection in some hundreds of cases, with no ill effects. The last outright denial I can recall is Judge Laro nixing a couple pizzaristi (hi, Judge Holmes) six-plus years ago; see my blogpost “Do You Want to Know a Secret?” 5/1/14. But in that case, at least, there was an articulable and legally-sufficient reason.

But Atm don’t need no articulable and legally-sufficient reason, or at least not one worthy of mention.  

“As petitioner has not agreed to abide by the proposed protective order and his agreement is essential to assure his compliance with any protective order entered in this case, we will deny respondent’s motion.” Order, at p. 1.

Perhaps I’m growing old, or the legal system in which I’ve practiced these last fifty-three (count ’em, fifty-three; and, trust me, I have counted them) years has changed beyond my poor power to add or detract, or even comprehend.

But I thought a duly-designated judge of a court of competent jurisdiction had the power to issue an order in a case or controversy properly before him or her that was an enforceable mandate to all persons with notice thereof, whether any or all of such persons liked or didn’t like it. And that there existed something called “contempt” for those who, whether liking or disliking said order, didn’t obey it.

Perhaps Dawson’s Creek is submerging more than a website.