In Uncategorized on 01/21/2022 at 12:27

I don’t recall if that was one of the Dick Wolf spinoffs on which one of my nearest and dearest worked as a special effects makeup artist years ago. Just now the concept is a hot one, as The Great Chieftain of The Jersey Boys is running an excellent CLE series on criminal tax prosecutions. Well worth the three hours of each segment. And, as Wolf’s opera proclaimed, Frank’s case study is “ripped from the headlines.”

Today Judge Nega deals with criminal intent as related to the Section 6663(a) civil fraud chops IRS wants to lay upon Brian Hollnagel, Docket No. 8271-19, filed 1/22/21 (Happy Palindrome Day!).

Brian’s trusty attorney moves for partial summary J, a very good tactical move, and one I’ve endorsed extensively before now. Trusty attorney wants to establish what facts IRS has to carry the “clear and convincing evidence” burden. And she gets them.

After a lengthy exposition that summary J is unsuited to cases where good faith and intent are on the menu, Judge Nega states “Because respondent has sufficiently alleged facts from which fraudulent intent can be inferred, this is not the extraordinary case in which summary judgment would be appropriate.” (Order, at p. 4)

OK, I doubt trusty attorney expected a clear win. But she gets what she wants at pp. 4-5, three (count ’em, three) paragraphs laying out exactly what IRS’ counsel claims are necessary and sufficient to lay the 75% chops on Brian. And anything else is “irrelevant, moot, or without merit.” Order, at p. 5.

True, Brian is not your model citizen. He went down on a bunch counts (hi, Judge Holmes) of wire fraud, obstruction, and filing a false amended return (Section 7206(1)) in USDCNDIL. (Order, at pp. 2-3)

But Judge Nega is not convinced. And IRS didn’t move for summary J (can’t cross-move in Tax Court, although I don’t understand the reason why not).

So here’s another example of summary J as discovery. And as courts have said for years, it narrows issues, makes the parties marshal and lay bare their proofs, and expedites litigation.

Brian’s trusty attorney gets a Taishoff “Good Move.”


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