Attorney-at-Law

Archive for April, 2021|Monthly archive page

THE GENIUS BARISTAS’ VENDETTA

In Uncategorized on 04/30/2021 at 15:22

It seems the Genius Baristas, or perhaps the Tax Court webmeister, has a vendetta going on, as regards Judge Mark V Holmes’ off-the-benchers. While the orders directing the Clerk to serve the transcripts are copy-and-pasteable, the transcripts themselves are not.

Therefore I can only say “Amen!” to Judge Holmes’ diatribe against the Affordable Care Act’s MAGI ambush in Marion Jean Antilla-Brown & Vernon James Brown, 14511-19S, filed 4/30/21. Marion Jean and Vernon James, reeling from a cancer diagnosis and need to move as their rented home was sold out from under them, drew down Marion Jean’s trad IRA, which threw them from their fixed income exchange APTC into the gulch of 400% of poverty MAGI-land to the extent of $956.

This triggered a $7K tax liability.

Judge Holmes rails against this absurd and unjust confiscation. Read it, because I can’t print it. And he even keeps his grammatical neologisms out of it. I thought his middle initial, which is “V,” stood for Vittorio Emmanuele, the Italian King who vowed to impose on his subjects throughout Italy even his errors of grammar. But my sources tell me it is not.

And Judge Holmes is definitely on his game today, when he pulls a Judge Posner by skirting the new “admin record only” amendments to Section 6015(e) innocent spousery in Momoudou Lamin Fatty, Petitioner, and Hansoutie Fatty, Intervenor, Docket No. 3787-20S, filed 4/30/21. Emphasizing that this is a small-claimer, Judge Holmes says the testimony of Mo and Han is “new evidence,” because they never got a chance to testify before.

So he finds that Mo is not entitled to innocent spousery because he knew all about the tax hit that caused him and Han to enter into the IA, out from which Mo seeks to clamber. The monthly installment is only $135, frugal Mo’s outgo is a grand less than his income, and their divorce decree says that Han has to pay all taxes; so if IRS tries to glom from Mo, he can sue Han in small claims court. Just like roommates in a fight over the electric bill.

I can just hear ex-Ch J Michael B (“Iron Mike”) Thornton’s “oh yeah?”

Practitioner, the “testimony is new evidence” gambit might be a longshot when you’ve got a tough case, but in a regular case I’m betting it’s a nonstarter; and I don’t hold out much hope for a small-claimer, either.

CODE 2, CODE 1

In Uncategorized on 04/29/2021 at 13:18

It Doesn’t Matter

Judge Mark V Holmes has bad news for Mary Walsh Woll & Jonathan Woll, Docket No. 7024-20, filed 4/29/21, in this off-the-bencher. Or maybe she’s Molly Walsh Woll, because her name is “Mary” on the order and “Molly” on the transcript. Whichever it is, she owes the Section 6662(a) accuracy chop on top of the 10% whatever-it-is on the 401(k) drawdown she took when she lost her job.

Mary/Molly is a lawyer. She got cut from Thompson-Reuters, rolled part of her 401(k), but needed the rest to live. She disclosed the drawdown on herself-prepared 1040MFJ, but didn’t file Form 5329 with it, nor did she bring the software she used to do her return to the trial.

IRS hit Mary/Molly with a SNOD for the 10%, as Mary/Molly was neither “exempt from the Law of Fifty and Five” nor 59-1/2 during year at issue. And they added the Section 6662(a) chop at no extra charge.

Well, the 10% is a given. Mary/Molly qualifies for none of the statutory exemptions, credible as her hardship testimony is.

Now the Genius Baristas have once again published a transcript from which I can’t copy-and-paste. And while I hang on every one of Judge Holmes’ words, and admire his neo-Piedmontese imposition of his own grammatical neologisms (explanation below), I will not copy them at length herein. If I wanted to be a typist, I would have been.

So check out the transcript at pp. 7 – 9. Mary/Molly might could have been befogged by the references to Code 2 and Code 1 in Box 7 of the 1099-R she got from the 401(k) trustee, as the same are described in the instructions for Form 1099-R. Now of course Judge Holmes is generally (love that word) the first to dismiss forms and instructions when they conflict with IRC and Regs. But here he reviews them, and finds that a lawyer like Mary/Molly should have known to send in Form 5329.

Boss Hossery is off the table, as the chop was computer-generated when the unreported 10% whatever-it-is went in. Untouched by human hands.

Oh, the reference to Piedmontese. The story is that when Vittorio Emanuele II, formerly King of the combined Kingdom of Piedmont, became the first King of a unified Italy in 1861, he said that he would so unify Italy that he would impose upon all Italians even his errors of grammar.

MY COLLEAGUE PETER REILLY, CPA

In Uncategorized on 04/28/2021 at 20:23

My colleague, Peter Reilly, CPA, is a widely-read blogger who always brings an interesting point of view to everything he writes. We mostly agree as to method and analysis, and I’m always learning from his observations.

But today, as I’m blogging Jeffrey B. Stankiewicz & Leslie A. Stankiewicz, Docket No. 3139-20, filed 4/28/21, I observe once again a long-time divergence of approach between my colleague and me.

I’ll let Mr. Reilly express his viewpoint. Here’s a recent comment he made to my blogpost “Shy? Try This,” 6/29/17, citing that post in a blogpost of his made at around that time. “The name of the petitioner is there for you if you want to know, but I figure he doesn’t need me to help make him famous. * * * * Mr. Taishoff includes the names.  By odd coincidence, yesterday Mr. Taishoff had a piece on how to keep some of your personal information out of the Tax Court record.”

Obviously, we differ. The names of the petitioners are public record of course, save in the rare instances where a Rule 27 sealing is ordered, or a Rule 345 protector arises in a whistleblower case. At least this was so pre-DAWSON, but that’s another story.

To my way of thinking, it’s not fame, it’s making the petitioner a person in the reader’s eyes. To tell the tale of an abstract “taxpayer” or “Petitioner” takes way the humanity, for good or for ill, and turns the case into a chess puzzle. Chess puzzles can be fun, but I chose to follow the law because there are people here, not chess pieces.

Jeff is a protester, and Judge Kathleen Kerrigan has little patience for such as Jeff.

“Petitioners did not make any valid arguments that petitioner husband’s wages are excludable from gross income because of any specific provision of law. Instead, they advanced frivolous arguments that his wages are not taxable. We do not need to discuss petitioner’s frivolous and groundless arguments. We shall not painstakingly address petitioner’s assertions ‘with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit.’ Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984).” Transcript, at p. 6. (Citations omitted).

Now I doubt Mr. Reilly would blog a case like this; it’s too ordinary, commonplace. But to me, it shows Tax Court at work, plodding through the dodgers and protesters until some interesting facts or novel question of law arises to let these highly-qualified judges and STJs show what they can do.

But dodgers and protesters, be they big-ticket highrollers grabbing a too-good-to-be-true solar energy dodge or a marked-up, strip-mined GA backwoods conservation easement, or a run-of-the-mine, wage-worker dodger claiming wages aren’t taxable or the Sixteenth Amendment wasn’t ratified, earn my ire. They want all the benefits of living in this great country without paying for it. They want all the rights and privileges, and all the due process of law, but someone else should pay. Well, if y’all want to go to court, be prepared to have your story told.

And the ordinary petitioner, enmeshed in the wrinkled tangles of our tax system, also needs their story told, with a human face, so that maybe so, just possibly, might could be, the Congress or Treasury might fix things.

STEALTH AND UNSTEALTH

In Uncategorized on 04/28/2021 at 15:37

The Genius Baristas have truly assumed the role of Censor to the United States Tax Court. Today we have examples of Stealth and Unstealth, with no apparent logical basis.

Let’s begin with Unstealth. Y’all will recollect Robert Marcel Aschenbrenner & Rediat Badeg Aschenbrenner v. Commissioner, Docket No. 2676-20S, filed 4/28/21.This is Rob’s & Red’s second try, their first having been on 4/22/21. See my blogpost “The Stealth Transcript,” 4/22/21.

Well, now it can be told. And I wonder why this was Stealthed in the first place.

The story is the unhappily usual Advance Premium Tax Credit that disappears when Rob got a job and broke the 400% poverty barrier. And Rob & Red never reconciled increased income with APTC.

Ex-Ch J L Paige Marvel is appropriately sympathetic, but the law remains. “We are sympathetic to the hardship that this imposes on petitioners. They are neither the first nor, we suspect, the last taxpayers to find themselves unexpectedly ensnared by the APTC. Unfortunately, we are not a court of equity, and we cannot ignore the law to achieve a fair or equitable end. The law in this case is clear; petitioners received an APTC to which they ultimately were not entitled. Consequently, we are bound to sustain the proposed increase in tax determined in the notice of deficiency….” Transcript, at pp. 7-8.

Now we go from Never-Stealthed to Stealth.

Blowers Lawrence W. Doyle & John F. Moynihan featured in my blogpost “Judge on a Tear – Part Deux,” 10/8/20. I reported a T. C. Memo., out there for all the world to see. But of course this was pre-DAWSON, when the Genius Baristas went on a tear to end all tears. One of the blower duo got me on the iPhone this morning. Apparently there was an order in their case on the same day as Rob & Red submerged in Dawson’s Creek.

When he asked me why I hadn’t blogged it, I said I didn’t recall seeing it, but as I was then in the middle of Broadway I couldn’t verify whether it had appeared on the new, improved (yeah, most affirmative), jim-handy Tax Court website. He told me it hadn’t, and when he called the Old Vic (that’s The Glasshouse designed by Old Vic Lundy), he was told he could order a copy from transcripts and copies. At that point, I think I raised my voice. But the conversation terminated cordially.

When I got back to my computer, I checked on the docket search link. The entire case has been obliterated, including but without in any way limiting the generality of the foregoing, the formerly published T. C. Memo. Needless to say, the complete text of said T. C. Memo. can be found on a number of free case services in a one-minute Google search.

First of all, the gentleman is a party. Copies are for sale to non-parties, according to the new, improved, whatever Tax Court website.

Second, why are the Genius Baristas pulling a George Orwell 1984, and hiding what was formerly public? Or trying to charge us journos when we ask for documents to be posted on the website that are required by law to be posted on the website?

Let’s stop with the Stealth, chaps, and let it all be known.

“PLEASE SUE ME”

In Uncategorized on 04/27/2021 at 18:06

We are all familiar with Form 8275, Disclosure Statement, and its sibling, Form 8275R, collectively known as the “Please Audit Me” forms. Today, Judge Patrick J. (“Scholar Pat”) Urda encounters the “paragraph IV certification,” also known as Please Sue Me.

Per the Waxman-Hatch Act, Pub. L. No. 98-417, 98 Stat. 1585 (1984), which intended to speed up generic drug approvals, manufacturers of generics could get fast-track pre-approvals from FDA if they certified the generics were equal to the brand-names, and the generic crowd could get exclusive marketing rights. But they also had to certify that the brand-name patents were expired or invalid, and let the patentees know.

Mylan Inc. and Subsidiaries, 156 T. C. 10, filed 4/27/21, ran up some hefty legal bills during the years at issue, between preparing notices to patentees that would satisfy FDA and fighting off the patentees before FDA final approval; like about $123 million in legal fees.

Mylan expensed the lot. IRS, surprise, surprise, wants the whole deal capitalized. IRS claims this is part of the cost of producing and marketing the generics, except for maybe $1.7 million for defending drugs already fully approved. And Judge Scholar Pat goes through the entire process in granular detail, having listened to the various experts presented by both sides.

The issue is whether the expenditure is a one-year consumable (expense), or a gift that keeps on giving through the years (capital). The Section 263 regulations set out the rules for “… certain ‘created intangibles’, including ‘rights obtained from a governmental agency’, contract termination fees, and amounts paid to another to defend or perfect title to intangible property. With respect to rights obtained from a governmental agency, section 1.263(a)-4(d)(5)(I), Income Tax Regs., specifies: ‘A taxpayer must capitalize amounts paid to a governmental agency to obtain, renew, renegotiate, or upgrade its rights under a trademark, trade name, copyright, license, permit, franchise, or other similar right granted by that governmental agency.’ Whether an amount is paid to create an intangible under paragraph (d) is determined on the basis of ‘all of the facts and circumstances, disregarding distinctions between the labels used in this paragraph (d) to describe the intangible and the labels used by the taxpayer and other parties to the transaction.’ Id.subpara. (1).” 156 T. C. 10, at pp. 22-23. (Footnotes omitted).

And the Reg Section takes in amounts paid to another party if that party challenges the claim to the intangible.

Expenses for acquiring, creating or enhancing the intangible must be capitalized.

 But the preamble to the Regs states that expenses of defending against infringement and collecting damages from infringement are deductible.

Expenses of litigating infringement are materially different from expenses of acquiring, creating or enhancing that which was infringed. Litigating infringement seeks getting the gain that inures to the owner of the intangible. And defense of one’s intangible is protecting said gain. Both are deductible.

So when does Mylan get the rights from the governmental agency? The convoluted FDA approval is only effective, that is, only allows the genericist to sell, after they have drafted, gotten approval of, and sent out the paragraph IV “sue-me” letter.

Mylan claims the sue-me is part of litigation, but Judge Scholar Pat says it’s part of getting the effective approval.

” Consequently, the legal expenses Mylan incurred to prepare, assemble, and transmit such notice letters constitute amounts incurred ‘investigating or otherwise pursuing’ the transaction of creating [the FDA effective approval]… and must be capitalized….” 156 T. C. 10, at p. 32. It’s really part of the application process.

But once the torpedoes have been launched, it’s another story. The expenses and outcomes of the various litigations brought by the patentees are defending Mylan’s right to sell the generics.

“The outcome of a [patent] suit has no bearing on the FDA’s safety and bioequivalence review. The FDA continues its review process during the pendency of the patent infringement suit and may issue a tentative or final approval before the suit is resolved. The FDA does not analyze patent issues as part of its review, and neither the statute nor regulations suggest that patent issues might block approval of an [application]. And winning a patent litigation suit does not ensure that the generic drug manufacturer will receive approval, as the FDA can disapprove [an application] for not meeting safety and bioequivalence standards.” 156 T. C. 10, at pp. 33-34.

The aim of the statute was to prevent patentees from treating any experimentation with their patented drug pre-expiry as an infringement.   

Once the experimenter goes forward, then the patentee can sue, but it’s a straight infringement suit. IRS claims that the suits are a prerequisite to approval. Except effective approvals can issue without a final judgment in an infringement case, and the brand name manufacturer isn’t obliged to sue.

 And the familiar origin of the claim test shows the origin of the claimed litigation expenses is a patent infringement case, not obtaining FDA approval. It’s to obtain profits, not protect title.

So the legal fees for preparing the sue-me letters are not currently deductible.

“ES IST EIN GANZES MEER”

In Uncategorized on 04/27/2021 at 12:46

I don’t know if Judge James S (“Big Jim”) Halpern is a lover of classical music. He may never have heard Johannes Brahms’ punning description of Johan Sebastian Bach’s output: “Das ist ein Bach? Es ist ein ganzes Meer!”

I guess I should translate, and explain. “That’s a brook? That’s an entire ocean.” The word “Bach” in German means “brook.”

Today Judge Big Jim has a mere order in 901 South Broadway Limited Partnership, Standard Development, LLC, Tax Matters Partner, Docket No. 14179-17, filed 4/27/21. The order recharacterizes an attempted response to a motion conjoined with a motion for summary J (multiple motions conjoined are a Tax Court no-no, unlike every other Court I know of), and denies the 901s partial summary J. Should be a one, or maybe two, pager.

Not when the 901s mount yet another assault on dear old Reg. Section 1.170A-14(g)(6), when perpetuity is in play and “a joy forever” is the name of the tune. Judge Big Jim is good for 31 (count ’em, 31) pages. It’s a ganzes Meer.

This should be a T. C. Memo., Judge.

Once again, the mortgagee might glom the proceeds if the façade easement is judicially extinguished. And before you say “Hey, 1st Cir put paid to that one” and direct Judge Big Jim to Kaufman v. Shulman, 687 F.3d 21 (1st Cir., 2012), the 901s are Golsenized to 9 Cir., and Judge Big Jim is ahead of you.  See order, at pp. 5-6.

Oakbrook gets a heavy duty workout, as do the Palmolives. I’ve blogged both so often that I’ll spare you the cites to my blogposts; I’m sure Google has them all.

The 901s trudge extensively through the deed language and CA law. CA law supposedly states that good faith and fair dealing rule when mortgagees have discretion to glom insurance or condemnation proceeds. But since the mortgage never got into the record, Judge Big Jim can make an adverse inference that mortgagee has no discretion and therefore can just grab. Anyway, when there’s a casualty loss, insurance proceeds might be used to repair and restore; but when eminent domain means total taking, neither the owner nor the 501(c)(3) defender has anything to repair or restore.

I leave it to my colleague Peter Reilly, CPA, to dissect, slice and dice Judge Big Jim’s prose. Judge Big Jim has written IRS’ brief for them to use in the Oakbrook appeal. And every other perpetuity appeal, be it conservation or façade.

Judge Big Jim’s “somber reasoning and copious citation of precedent” notwithstanding, my money is still on so-remote-as-to-be-negligible. No cash-strapped municipality is going to raise taxes or incur bonded indebtedness to acquire a landmarked building, whose façade cannot be altered without starting the whole preservationist brouhaha. Cheaper just to grab a half-empty, newly-built, underwater, glass-and-steel office building, whose owners would be ecstatic to get anything for it, and whose tenants would love to bail on their pre-COVID leases. And that will be so even after the pandemic fades away. Teletubby is the new normal.

Judge Holmes got it right in his Oakbrook dissent.

Edited to add, 4/28/21: Problem for all the appellants is that they didn’t raise so-remote-as-to-be-negligible below, thus leaving their best argument in the locker room.

HOW THE WEST WAS WON

In Uncategorized on 04/26/2021 at 16:45

By Judge Mark V. Holmes

Our story starts with a pleasant man, talented cowboy, and skilled horsethief Dutch Henry (and skilled horsethieves ran in my family; just ask the Girl of My Dreams). Dutch Henry turned a chuckwagon cook onto a MT creekside where he would find “plenty wood.” And that was the start of Plentywood Drug, Inc., at. al., 2021 T. C. Memo. 45, filed 4/26/21.*

It’s a true Western. Plentywood Drug is a true frontier pharmacy, as that term is defined in the much-controverted Affordable Care Act. It serves a 7200 sq. mi. area, population density 2/sq. mi. Judge Holmes reminds us that The Wannabe State has 11,500/sq. mi. Plentywood Drug, Inc., is owned by two families; Plentywood Drug, Inc., rents its premises from said families.

IRS claims the families overpay themselves rent, deductible from store taxes, rather than properly paying themselves double-taxed dividends. IRS doesn’t raise the issue of salaries (FICA/FUTA/ITW), so I won’t either.

Appraisals and expert testimony are hard to come by.

“The parties in these cases quickly realized that finding comparable properties in a town of 1,700 people in frontier Montana and then using them to come up with a fair market rent would be difficult. One problem right out of the chute is that Montana is a nondisclosure state. This means that real-estate data such as sales prices that appraisers can typically find in other states is legally confidential and simply not available. This issue is magnified in a town the size of Plentywood, which already has a limited number of even potentially comparable buildings. We heard entirely credible testimony that Montanans–perhaps especially Montanans in small communities–don’t commonly share details of their financial lives very readily with strangers. The Commissioner’s expert was particularly credible in his statement that when he tried to find information in Plentywood he did not identify himself as an IRS agent.” 2021 T. C. Memo. 45, at p. 9.

The nearest larger town was in the ND oil belt, with prices to match. After fighting over the Plentywoods’ appraiser’s failure to use USPAP (Uniform Standards of Professional Appraisal Practice), which Judge Holmes says goes to weight and not admissibility, and much argy-bargy over IRS’ expert’s power to add or detract based on differences between comparables that aren’t comparable (government-subsidized housing projects are not comparable to the only drugstore in 7,200 sq. mi.), Judge Holmes does a classic mix-and-match.

The Plentywoods’ rent number is OK. IRS misses the Boss Hoss on the families, but Plentywood Drug, Inc., is a corporation, hence Boss Hoss not necessary. And Plentywood Drug, Inc.,’s number is so OK that it misses the five-and-ten understatement chop.

Best of all, Judge Holmes waits until page 25 to make sure I’ve read his every golden word.  “That also leaves Plentywood Drug to argue its way out of a penalty on the merits, which it can do in a couple ways.” 2021 T. C. Memo. 45, at p. 25.

*Plentywood Drug T C Memo 2021-45 4 26 21

SPIRITED AWAY?

In Uncategorized on 04/26/2021 at 12:03

Steely Spirit, Inc., Docket No. 4797-20, filed 4/26/21, has failed to file Form 6, the Ownership Disclosure Statement. This news should shock no one with even a tangential connection to US Tax Court practice.

I’ve said it before, often enough. Upwards of 90% of the corporations petitioning US Tax Court don’t fill out the form at all, or get it wrong (usually leaving it blank). It makes you wonder about the decline of American business acumen, once the wonder of the world. Why is it that so many of its driving forces are incapable of checking their stock ledgers, writing the word “NONE” in two (count ’em, two) different spaces on a one-page form, and signing it. Or, if its executive officers are incapable thereof, why they don’t ask for help.

Judge Gale explains why the form is necessary. Judges do have investments. “In the absence of information concerning whether petitioner is owned by a publicly traded entity, the undersigned is unable to ascertain whether he is obligated to recuse from this case. See Canon 3C(1)(c) and Canon 3C(3)(c) of the Code of Conduct for United States Judges (Mar. 12, 2019).” Order, at p. 2, footnote 2. These are the financial stake in the outcome rules, triggers for 28USC§455 recusal. I talked about this just last Friday; see my blogpost “It’s Too Late, Baby, Now It’s Too Late – Part Deux,” 4/23/21.

The Steely Spirits were mum twice before, when Judge Gale told them to file. Showing almost fatherly forbearance, Judge Gale so orders the Steely Spirits a third time. Now he’d told them the last time he could toss them for nonprosecution. But there’s one last catch before the Steely Spirits join their much better described spirit forbears: “We are such stuff as dreams are made on.”

“In view of the fact that petitioner has continued to disregard the Orders of this Court on a matter that affects the orderly disposition of this case, the Court is prepared, on its own motion, to dismiss this case for failure to properly prosecute. In that event, in view of the fact that the case involves review of a determination of unreported income, respondent may bear an initial burden to make a ‘minimal evidentiary showing’ supporting a link between petitioner and an income-producing activity. Accordingly, before dismissing this case for failure to properly prosecute, we believe it is appropriate to afford respondent an opportunity to make any proffer he wishes to make to satisfy any initial evidentiary burdens he may bear with respect to the unreported income determinations in the notice of deficiency.” Order, at p. 2. (Footnotes omitted).

I gave you the first of the omitted footnotes hereinabove. The second says that since the Steely Spirits are a corporation (wherefore incorporeal), IRS need not produce any Boss Hossery. See my blogpost “Howdy, Partner – Part Deux,” 5/7/18.

IT’S TOO LATE, BABY, NOW IT’S TOO LATE – PART DEUX

In Uncategorized on 04/23/2021 at 19:32

I didn’t blog Wiley M. & Sharon Elick, Docket No. 23767-10, filed 4/23/21, when then-Judge Diane Kroupa issued 2013 T. C. Memo. 139, filed 6/3/13. I got hung up with then-STJ Lewis (“Spell It Like It Is”) Carluzzo’s exegesis of 4,500-word (count ’em, 4500 words) of the Section 469 passive activity story. See my blogpost “Incomprehensible?” 6/4/13. Wiley (that’s Doc Wiley, the pediatric dentist) and his Section 162 problems were run of the mine stuff, and 9 Cir. agreed, affirming in 2016.

Well, Doc Wiley is back, and Judge Emin (“Eminent”) Toro has him. Turns out Wiley “recently” discovered Judge Kroupa, who tried his case, had been indicted while his appeal to 9 Cir was pending. Order, at p. 8. Of course, my readers know Kroupa pled to conspiracy to defraud the USA in October, 2016, and was sentenced in June, 2017, to 34 months hard.

So Wiley wants a vacation, out of time. Given Rule 162 speaks of 30 days after decision, and Section 7481 speaks of denial of cert by the Supremes, Wiley is definitely out of time. And although Tax Court may not have jurisdiction, Judge Eminent will consider the threshold issue: Is Wiley too late, jurisdiction or no jurisdiction?

Wiley invokes FRCP 60(b)(6), saying 28 USC§455 required Judge Kroupa to recuse herself. Maybe so, says Judge Eminent, but you have to give me a good excuse why it took you this long to raise the issue.

“The Elicks filed their motion for leave more than three and a half years after Judge Kroupa’s indictment, more than three years after her guilty plea, and nearly two and a half years after her sentencing. The motion was also filed more than three and a half years after the decision in the Elicks’ case became final. The Elicks’ only justification for this delay is that no one notified them of the developments with respect to Judge Kroupa. Notably, they avoid specifying the exact date they learned of Judge Kroupa’s indictment, other than saying it was ‘recently.’” Order, at p. 8.

If you want to write a law review article about FRCP 60(b)(6), you can crib Judge Eminent’s “somber reasoning and copious citation of precedent.”

Bottom line- Wiley has got neither a good excuse for this delay, nor any statement of what Kroupa’s tax problems had to do with the decision in his case.

And a Taishoff “Oh, Please, First Class, with Brass Accoutrements” to Wiley’s attorney, whom I’ll call JJ.

THIRTY’LL GET YA TEN

In Uncategorized on 04/23/2021 at 13:48

That’s the going rate in Judge Buch’s digital courtroom. Brent Jackson, Docket No. 2429-20, filed 4/23/21, is on the receiving end of a $10K Section 6673 frivolity chop, but Brent’s been on the frivol for thirty (count ’em, thirty) years.

“According to Mr. Jackson, he has raised protest arguments before this Court approximately twenty times since 1983. In 1991, we imposed a sanction of $5,000 on a Brent Jackson to deter him from pursuing frivolous arguments in future cases. Jackson v. Commissioner, T.C. Memo. 1991-498 (1991), aff’d, 990 F.2d 1258 (9th Cir. 1993). The Brent Jackson in that case made the same types of arguments perpetuated by Mr. Jackson in this case, and when given the opportunity, Mr. Jackson did not deny that he was the petitioner in the 1991 case. In 2018, we again cautioned Mr. Jackson that if he continued to raise frivolous or groundless arguments, or he instituted or maintained a case primarily for delay, he may be subject to penalties under section 6673 up to the amount of $25,000. See Order of Dismissal and Decision, Jackson v. Commissioner, No. 9099-17 (Jan. 29, 2018), aff’d, No. 18-71248 (9th Cir. Mar. 10, 2020). In ordering a response to the Commissioner’s motion in this case, we once again cautioned Mr. Jackson against perpetuating frivolous arguments. He did not heed these warnings. His filings are filled with protester arguments. And when given the opportunity to argue in opposition to the motion to dismiss, he merely perpetuated the argument that there is no law that requires the filing of a return or payment of taxes, an argument repeatedly rejected by the Courts.” Order, at p. 2. (Citation omitted).

I never blogged Brent before now. He didn’t even come up to rounder class, but he’s on my radar now, and I’m sure he’ll be back with a CDP when IRS tries to grab the $1500 in tax, chops and add-ons that Brent owes.

And the $10K Judge Buch awards IRS for the thirty years’ worth of Brent’ frivolities.

So, Brent, thirty’ll get ya ten.