In Uncategorized on 07/28/2021 at 17:41

I have those vox clamantis in deserto moments, when I try in a blogpost to tell a litigant to try an argument, and they “walk on by” as Hal and Burt put it. But today I get the hopeful, if perhaps mistaken, feeling, that they did.

Here again is 901 South Broadway Limited Partnership, Standard Development LLC, Tax Matters Partner, Docket No. 14179-17, filed 7/28/21. Today the 901s are asking Judge James S (“Big Jim”) Halpern for more time to respond to his OSC, which response is due Friday. See my blogpost “The Rule Against Perpetuities,” 7/23/21 for the backstory.

Judge Big Jim is unimpressed with the 901s’ claim that his six-page OSC was too complicated for them to deskew and riposte. “Petitioner has not demonstrated sufficient cause for us to extend the deadline for its response to the show cause order. Five of the pages of the show cause order (which actually consists of six pages) simply state the relevant law, some of the facts of the case, and the case’s procedural history. None of that should have been new to petitioner. All that might have been new was our observation that, because of the possibly dispositive nature of an issue that had already been extensively briefed by the parties, ‘the time and potential expense of trial may be unnecessary to our disposition of the case.’ That observation, as well, need not have come as a surprise to petitioner in light of our April 27 order. Petitioner should be no more eager than the Court or respondent to conduct a potentially unnecessary trial focused on a factual issue (the value of the easement) that would be moot if the donor partnership is not entitled to any deduction at all for its contribution of the easement because of its failure to satisfy one of the applicable legal requirements.” Order, at p. 2.

Except that’s the point. The “failure to satisfy a legal requirement” raises the question “what is the legal requirement?” Is it “a highly contestable reading of what it means to be perpetual”?

But Judge Big Jim doesn’t quite slam the door on the 901s.

“While holding petitioner to the original deadline of July 30, 2021, for its response to the show cause order, we observe that, should petitioner, after submitting its response to that order, identify additional arguments that it believes the Court should consider in disposing of the show cause order, it would be free to move for leave to supplement its response to that order. The show cause order gives respondent until August 6, 2021, to supplement, as he sees fit, his arguments in regard to the mortgage subordination issue. Therefore, as a practical matter, we will not be in a position to dispose of the show cause order before August 9, 2021, the extended deadline petitioner requests for its response to that order. For the reasons explained above, we do not expect it likely that petitioner will find itself in a position of identifying, only after July 30, 2021, arguments that it has already had plenty of opportunity to make. We will address that eventuality only if and when it arises. In the meantime, we will require petitioner to adhere to the deadline established in the show cause order for its response to that order.”  Order, at p.3.

Chaps, whether or not you had the chance to make the argument before, make it. And tell Judge Big Jim that Taishoff sent ya.


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