In Uncategorized on 03/11/2022 at 18:07

I’ve proclaimed far and wide that I’m a great fan of summary J. It rivals the Swiss Army knife as a multipurpose tool. You can win all or part of your case; you can get testimonial and documentary discovery without the scrimmaging of face-to-face or Zoomie Q&As (or the cost of hiring a high-priced stenotypist who’ll get things wrong anyway); and best of all, you can see what the judge thinks of your case.

IRS must think so too, because summary J is one of IRS’ most made motions. Tax Court’s website devotes a bunch Q&As (hi, Judge Holmes) to the subject on its information for petitioners pages.

Today Judge Nega shows how to go around from a missed approach when you blow the sixty-day cutoff in Rule 121(a). Motions for summary J must be made so as not to delay trial, and in no event later than sixty (count ’em, sixty) days before the first day of the trial session wherein your case is calendared, even if you’re not going to trial that day.

In John Joseph Bauche, Docket Number: 12241-20L, filed 3/11/22, IRS moved for summary J last July, but that motion was dismissed without prejudice last August. So IRS tried again a week ago. Problem was, the IRS was a day late, as trial was noticed for the 5/2/22 session; IRS moved 2/4/22, but last day was 2/3/22.

Apparently IRS’ counsel caught the glitch just as they hit the “send” button for the motion, so they immediately followed with a motion for leave to file out of time.

Judge Nega:In respondent’s motion for leave, respondent states that the filing of his Motion for Summary Judgment was delayed due to clerical error. Respondent further that petitioner will not be prejudiced by the delay given that the motion for summary judgment contains only minor updates to the motion for summary judgment respondent filed in this case [last July], and given that respondent informed petitioner on February 25 and March 3, 2022, that he would be filing a motion for summary judgment with respect to the May 2, 2022, trial session. Respondent represents that petitioner objects to the granting of respondent’s motion for leave. We find that respondent’s short delay in filing his motion for summary judgment has not prejudiced petitioner. Accordingly, in light of our discretion under Rule 25(c), we will grant respondent’s motion for leave.” Order, at pp. 1-2.

So here’s the missed-approach go-around checklist. When you first decide to go for summary J, tell the adversary. Calendar the due date. Remind yourself and adversary. Have a form of motion for leave to file out of time handy in the wordprocessor. Make sure your new motion for summary J, to file which you’re requesting leave, has only minor tweaks to the rejected motion, and so represent to the Court.

Fly runway heading, climb to pattern altitude, and hopefully the Judge will let you reenter the traffic pattern.


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