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.