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.