Attorney-at-Law

PASS THE REMOTE

In Uncategorized on 09/07/2021 at 15:31

Though The Girl of My Dreams watches the double-wide in the living-room, I do not, so never is heard those discouraging words in our house.  But Judge Christian N. (“Speedy”) Weiler does just that, in Green Valley Investors, LLC, Bobby A. Branch, Tax Matters Partner, et al., Docket No. 17379-19, filed 9/7/21.*

Y’all will recollect that Judge Speedy upended the Green Valleys back in May. No? See my blogpost “How Green Was My Valley – Part Deux,” 5/27/21. Well, the Green Valleys tried reconsideration, and today fare no better.

I’m not going into the improvements-out or the deference-to-regulation arguments here. Read them for yourselves, but they’re much of a muchness with all the prior Tax Court learning. I’m waiting for appellate learning before chewin’ this cabbage twicet.

I’m going back to my old favorite, “so remote as to be negligible.”

Unhappily, the Green Valleys didn’t raise this argument in the partial summary Js for which they now seek reconsideration. Judge Speedy could blow them off on that alone. “On the basis of our review of the prior motion papers petitioners are raising this argument now for the first time and therefore could be denied on that basis alone.” Order, at p. 6.

OK, but the citation of precedents IRS (presumably) argues, and Judge Speedy buys, don’t really cover. First is the original “How Green Was My Valley,” 4/27/16, Carroll. But there Judge Ruwe distinguished Kaufman on the grounds that there was no intervening mortgage; and Carroll never appealed.

Next is Palmolive, as to which see my blogpost “No Joy Forever – Because Golsen,” 10/11/17.

But there, Judge Gustafson tossed Kaufman because Kaufman was 1 Cir and Palmolive was 7 Cir, and anyway, 1 Cir was wrong. But Palmolive folded (see my blogpost “Palmolive Washes Out,” 12/4/20), so no appeal there either.

OK, the Kaufman argument is a weak reed. Casualty loss is by “no means so remote as to be negligible,” especially to a New Yorker who’s seen two (count ’em, two) record-braking flash floods in the last ten days. And the mortgagee can scoop the insurance proceeds in every  mortgage I’ve seen. But brushing off condemnation by saying there are other ways that an easement may be terminated, as Judge Ruwe did in Carroll, is just as weak a reed. Those “other ways” as just as remote.

Yes, failure to raise the argument on the motion is enough to toss reconsideration, absent fraud, which is not the case here. Still, “very contestable readings of what it means to be perpetual” will not go away until the Circuits weigh in.

So don’t pass the remote quite yet.

*Green Valley Investors 17379-19 9 7 21

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