Attorney-at-Law

I GOT IT RIGHT – PART DEUX

In Uncategorized on 05/02/2022 at 19:18

My arm’s too short to give myself a proper pat on the back, but Celia Mazzei, T. C. Memo. 2022-43, filed 5/2/22 has ex-Ch J Michael B (“Iron Mike”) Thornton tossing Celia’s Section 7430 admins-and-legals motion to the tune of $396K.

You’ll no doubt recollect that 9 Cir reversed Tax Court. If you don’t, see my blogpost “I Got It Right,” 9/20/21. There now, you see back then I went Nassau, even though it’s the loser on the front nine who has to double the bet on the back nine.

And I win again.

“Before petitioner filed in this Court her Motion for Litigation Expenses with respect to the trial proceedings, she had already filed in the Ninth Circuit—and the Ninth Circuit had already denied—petitioner’s appellate motion, which ‘protectively’ sought these same trial-level litigation expenses as well as fees associated with the appellate proceedings. These circumstances present a fundamental threshold issue about our authority to consider and decide petitioner’s motion for litigation expenses.” T. C. Memo. 2022-43, at p. 4.

But even pore l’il ol’ Tax Court can decide if it has jurisdiction.

And our old friend law of the case takes the lead. Once a superior court, or even the same court, has decided an issue, that’s it. Reargue, reconsider, or appeal, but if you don’t, you’re stuck.

Celia’s trusty attorneys had asked 9 Cir for the legals and admins, but all they got was a mandate for Tax Court to award Celia costs on appeal, a big $340.10. Don’t spend it all in one place, chaps. So they tried in Tax Court, without telling ex-Ch J Iron Mike in their motion but mentioning it in an attorney’s affirmation. And that this is labeled a “protective” claim to prevent IRS from arguing no jurisdiction is irrelevant;  law of the case governs.

9 Cir didn’t tell Tax Court nuthin’ ’bout no costs except the $340.10.

It’s our old friend In re Sanford Fork & Tool Co., 160 U.S. 247 (1895), at p. 255: “When a case has been once decided by this court on appeal, and remanded to the circuit court, whatever was before this court, and disposed of by its decree, is considered as finally settled. The circuit court is bound by the decree as the law of the case, and must carry it into execution according to the mandate. That court cannot vary it, or examine it for any other purpose than execution; or give any other or further relief; or review it, even for apparent error, upon any matter decided on appeal; or intermeddle with it, further than to settle so much as has been remanded.”

Celia loses.

Bu just to help out 9 Cir, ex-Ch J Iron Mike decides IRS was substantially justified. Only one appellate case had been decided when Celia Mazzei lost in Tax Court, and that doesn’t mean IRS was not justified in pursuing Celia.

I again quote The Great Chieftain of the Jersey Boys: “I have never met a client that thought incurring fees to contest an erroneously determined tax was fair.”

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