Attorney-at-Law

EXECU-JUDICIAL NULLIFICATION

In Uncategorized on 01/25/2022 at 19:29

Just now we’ve seen all kinds of pullbacks from COVID-induced orders, directives, emergency measures, the politics of which I leave to other voices, other rooms. I’ll chew no such cabbage here even once, much less twicet.

Lastisha J. Redman, Docket No. 12758-20, filed 1/25/21, is late with her petition, and Mnuchin’s Treasury Munchkins’ Quinzième Juillet ipse dixit avails her naught. Neither is Guralnik of any use. See my blogpost “Neither Equity Nor Designation,” 6/2/16, for the happy story of Felix Guralnik.

What saves Felix is FCRP 6(a)(3). We all know the Supremes promulgate the FRCP, but Congress has seven (count ’em, seven) months to veto them. I forbear to comment on Congress’ chances of doing so. Of course, Tax Court makes its own rules, giving particular weight to FRCP when their own rules don’t cover.

I’ve advocated for an Octavia rule to cover situations like COVID, where Tax Court is shut down for more than a day. I cannot think COVID will be the last such instance when Our Nation’s Capitol will be under siege, from whatever source.

Of course, we have in Sections 6213 and 6330 explicit Congressional mandates. Again Ch J Maurice B (“Mighty Mo”) Foley intones the unalterable mantra “(I)n order to be timely, a petition generally must be filed within 90 days of the date on which the Commissioner mails a valid notice of deficiency. See I.R.C. § 6213(a); Brown v.  Commissioner, 78 T.C. 215, 220 (1982). We have no authority to extend this 90-day period. See Joannou v. Commissioner, 33 T.C. 868, 869 (1960); see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1093-1095 (9th Cir. 2020).” Order, at p. 2 (Footnote omitted, but it’s the 150-day stretch for offshoreniks).

Maybe the Congressional solution is the only proper one, rather than a cobbled-together, jury-rigged Execu-Judicial nullification. How about statute providing filing deadlines in stated emergencies extended by Presidential executive order, subject to Congressional veto?

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