This is another instance of British Army slang going back more than 100 years. One authority defines it as “A soldiers’ greeting to a shower of rain likely to postpone a parade.” Although the “David” in the phrase is not otherwise identified, I maintain David refers to St. David, Welsh bishop of Mynyw during the 6th century, patron saint of Wales. Wherefore, the phrase may have started with a Welsh regiment’s distaste for regimentation in the rain, and their invocation of their homeland’s patron for deliverance.

However all that may be, today we have two Davids sending it down, Dave Hewitt, the victor in 11 Cir’s view of Reg. Section 1.170A-14(g)(6)(ii), and that Obliging Jurist, Judge David Gustafson. And the two Davids are sending down Habitat Green Investments, LLC, MM Bulldawg Manager, LLC, Tax Matters Partner, Docket No. 14433-17, filed 2/14/22, and two (count ’em, two) companions, all Bulldawg-managed and all whanged with Oakbrook pre-Hewitt.

There are consolidated motions for leave to file out-of-time reconsiderations. You’ll recall the Dawgs lost back in 2019, moved to reconsider in 2020, lost again, but then came Hewitt.

Of course, Judge David Gustafson, noting that appeals here go to 11 Cir, grants the late filing. But IRS is at its usual crafty maneuvering.

“The motions for leave state that the Commissioner does not object to those motions (i.e., does not object to the filing of the motions for reconsideration), and we will therefore grant the motions for leave and will file the motions for reconsideration that were lodged with them. However, the motions state that the Commissioner objects to the motions for reconsideration.” Order, at p. 2. (Emphasis by the Court).

So let IRS respond. But while IRS is trying to salvage the wreckage of its reading of the Proceeds Regulation, Judge David Gustafson sends down a wee reminder.

“We note that in response to an apparently equivalent motion in Oconee Landing Property, LLC v. Commissioner,  No. 11814-19, the Commissioner filed on January 27, 2022, ‘Respondent’s Notice of No Objection’. We do not insist that the Commissioner is obliged to take the same position in this case as in Oconee Landing, but that position does seem reasonable in light of the Eleventh Circuit’s reversal of Hewitt.” Order, at p. 2.

Another major silt-stir has arrived, with blogfodder galore. Send it down, David, indeed!