It’s been a wee while, and maybe more than a wee while, since I last awarded a Taishoff “Oh, Please.” For those coming late to this my blog, I award a Taishoff “Oh, Please” to those who make arguments so specious, or so wanting in merit, that they barely escape a Section 6673 frivolity or delay-of-the-game chop. The award comes in various grades.

Today’s award, a Taishoff “Oh, Please” First Class, goes to IRS’ counsel in Julian Wolpert and Estate of Eileen Wolpert, Deceased, Julian Wolpert, Executor, et. al., Docket No. 3182-20, filed 4/22/21.

Trial was noticed for this Monday back in January. Pretrial memos were filed as scheduled at the beginning of this month. When Judge Courtney D. (“CD”) Jones did a pretrial phoneathon with the parties a week ago, she expected a stip of facts prontito.

She got a motion to amend the answer out of time, with a new basis for disallowing deductions. And a motion for a continuance ten (count ’em, ten) days before trial. Somehow IRS’ counsel were unaware that the file from Appeals hadn’t gotten to them before the phoneathon aforesaid.

Judge CD Jones is way more gentle than I would have been, with these facts.

“…petitioners state that granting respondent’s motion would cause them to suffer undue prejudice due to Mr. Wolpert’s age, medical condition, and impairment of their counsel’s resources. Their objection notes that the docketed cases have placed a large amount of stress on Mr. Wolpert and that he wants them resolved as soon as practicable. Moreover, their objection states, ‘Petitioners’ counsel has sufficient resources to bring the matter to trial now and may not be able to do so again until the end of 2021.’” Order, at p. 2 (Footnotes omitted).

Taishoff will summarize the omitted footnotes. Mr. Wolpert is 88 years old and suffers from several debilitating and chronic illnesses. Petitioners are represented by a legal aid clinic staffed by law students. Members of petitioners’ legal team will be unavailable after May 19, 2021 due to the conclusion of the school year. Mr. Wolpert is a surviving spouse. Both he and the Estate of Eileen Wolpert, of which he is executor, are petitioners.

As to the motion for continuance, “(R)espondent has not shown that the requisite exceptional circumstance exists. Nor has respondent demonstrated good reason for failing to make the motion sooner. Moreover, the Court is cognizant of Mr. Wolpert’s age, medical condition, and the likelihood of impairment to his counsel if the proceedings are delayed. Consequently, the Court deems the motion dilatory and will not continue the case from trial.” Order, at p. 3.

See Rule 133. Better have a real good story when you want a go-around on a short final.

As for amendments, leave is freely, right? Yes, when no prejudice.

“More than a year has elapsed since respondent filed the first answer in these consolidated cases, during which time he had ample opportunity to move for leave to amend. Instead, respondent moved ten calendar days before the New York City, New York remote trial session is scheduled to commence. The Court will not grant such a motion at the 11th hour, as doing so would deprive petitioners of fair notice and an opportunity to prepare. Given Mr. Wolpert’s advanced age and ailments, fair notice and an opportunity to prepare are particularly exigent in this case.” Order, at p. 3. (Citation omitted).

Tune in Monday morning for the trial.