Attorney-at-Law

THE PROTECT DEFENSE

In Uncategorized on 02/05/2021 at 11:25

Just yesterday I gave my patient readers some obiter dicta on the need for petitioners’ practitioners to protect the client with a filing. Although in the event it may turn out to be unnecessary, it is certainly not improvident; the old saw “better to have it and not need it than to need it and not have it” applies to more than insurance policies.

Today I see that IRS’ counsel takes a like approach. While settlement on the eve of trial is a real probability, there’s no harm in trying to buy time before the window closes.

Here’s Erik John Frick, Docket No. 5699-20S, filed, 2/5/21. The story is simple. The dates tell it all.

“This case is currently calendared for trial at the Court’s Boston, Massachusetts trial session beginning February 8, 2021. On January 8, 2021, respondent filed a motion for continuance. On February 4, 2021, the parties submitted to the Court a proposed stipulated decision.” Order, at p. 1.

I’m sure my ultrasophisticated readers hardly need be reminded that Rule 133 sets hearings on motions for continuance to be heard on the trial date, when the motion is made fewer than thirty (count ’em, thirty) days prior to trial. And the motion is likely to be denied, trial to follow then and there.

I expect IRS counsel (now anonymous under Dawson’s Creek, for reasons unknown) wanted to allow time to hammer out the settlement stip, without being under the gun to prep for a trial that might not happen, and as protection in case the settlement negotiations fell apart. And, keeping an eye on the calendar, waited to the last minute to ask.

Ch J Maurice B (“Mighty Mo”) Foley denies the motion for continuance, of course, since there won’t be a trial.

But it’s easier to do a quick petition, or a short set of motion papers, than to be without recourse if things go south.

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