I am not without scruples. Though I made the morning line 3 to 1 that “highly contestable readings of what it means to be perpetual” would founder in 6 Cir (see my blogpost “They Always Must be With Us,” 5/12/20), I had no bet on, as it would be taking the bookies’ money.

Well, my colleague Peter Reilly, CPA, informed me that 11 Cir had put paid to perpetual motion in Hewitt v Com’r, No. 20-13700, 12/29/31. Mr Reilly asked whether I’d blog the decision on appeal. I usually don’t blog appeals, because the trade press and the blogosphere jump on the CCAs and USDCs, and I’m left fishing behind the net. I also don’t want an inference to arise that I have any obligation to update my blogposts. These are essays, not legal opinions. Use, if at all, wholly at your own risk.

But Mr Reilly turned up some political commentary, claiming judicial misconduct. Arrant nonsense; proof once again that Lord Chief Justice Campbell was right: “There is nothing so dangerous as for one not of the craft to tamper with our freemasonry.”

Allow me to stress that Dave Hewitt’s appraisers beat IRS’. And that Dave didn’t flog pieces of his deal to dodge-hungry highrollers. And Dave raised the Administrative Procedures Act below, to contest the “highly contestable reading” by Judge Goeke.

You can read 11 Cir’s decision for yourselves, but Judge Richard Posner, late of 7 Cir, got it right. “I pay very little attention to legal rules, statutes, constitutional provisions. … A case is just a dispute. The first thing you do is ask yourself—forget about the law—what is a sensible resolution of this dispute? The next thing … is to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. And the answer is that’s actually rarely the case. When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

Judge Holmes got it right in his dissent in Oakbrook. The phony easements, be they scenic, conservation, or façade, are phony because overvalued. Tax Court is the valuation court par excellence. Don’t throw out the legitimate deals because the wiseguys play games.