I’ve commented many times on the United States Tax Court Admissions Examination, the biennial slaughter of the innocents. Section 7452 contains the famous Dingell Amendment: “No qualified person shall be denied admission to practice before the Tax Court because of his failure to be a member of any profession or calling.”

This democratizing effort had the usual unintended consequence of erecting the “disputed barricade,” thereby restricting “qualified person” to the tiny group who successfully storm the same.

But there’s a good reason for requiring an in-depth knowledge of the FRE and the Tax Court Rules of Practice and Procedure. Even CPAs, knowledgeable as they are, can fall foul.

Here’s Joseph Amundsen, Docket No. 9996-21, filed 10/4/22. That’s Joseph Amundsen, CPA.

Judge Christian N. (“Speedy”) Weiler takes up the story.

“At trial, Mr. Amundsen offered evidence to the Court, including Exhibit 508-P, labelled ‘General Ledger,’ which outlines the debits and credits in Mr. Amundsen’s bank account…. At trial, Exhibit 508-P was admitted into evidence by the Court. At the conclusion of trial, and at the request of the parties, post-trial briefing was ordered by the Court. …Mr. Amundsen submitted his opening brief to the Court, which included a document entitled ‘Joseph Amundsen, CPA, General Ledger’.” Order, at p. 1.

No problem, right? Can always cite to trial evidence in the opening-trial brief.

Except.

The attachment has two (count ’em, two) more pages than the trial exhibit, has a different date stamp (four months later than the trial exhibit), and doesn’t show a bunch debits (hi, Judge Holmes) that appeared on the trial exhibit.

Joseph Amundsen, CPA, explains that the “…general ledger attached to the opening brief is formatted differently, printed in easier to read rows and columns so that this case may be resolved.” Order, at p. 2.

See also my blogpost “Please, Mother, I’d Rather Do It Myself,” 7/26/18, anent helpful attempts to recast trial evidence.

Judge Speedy Weiler says the reformatting is merely cumulative evidence and wasn’t made part of the trial record. Statements in briefs are not evidence. And the “General Ledger” is not a proposed finding of fact, as it fails to comply with Rule 151(c)(3), which requires a concise statement of proposed findings, not a repetition of trial evidence.

Joseph Amundsen, CPA, is self-represented. We’ve all seen a lot worse from pro ses. But when every day’s budget of orders includes at least a few admonitions to Form 2848 representatives (including CPAs) that they need to pass the exam, I can see the necessity.

The CLE merchants seem to have abated their discovery lectures. I tuned in a Zoom session thereon last week given by an Upstate jurist that was a model of clarity, wherein not a word was breathed anent discommoding one’s adversary with deft disclosure demands or game-changing ripostes to one’s adversary’s wide-cast nets.

But today STJ Adam B. (“Sport”) Landy provides a new entry in my “Discovery channel” miniseries. While STJ Sport Landy may have an advanced degree in sports and entertainment management (hence the sobriquet), he has no patience for those who play games, even at discovery.

Hiram T. Cannon and Doris A. Cannon, Docket No. 15257-20, filed 10/3/22, failed to try informal discovery before moving to compel. This draws the first rebuke from STJ Landy.

“This Court’s jurisprudence requires both parties to cooperate and participatein informal discovery prior to seeking formal discovery. See Branerton Corp. v.  Commissioner, 61 T.C. 691, 692 (1974). The informal discovery process is essential for the voluntary exchange of facts and documents as an aid to a more expeditious trial of cases as well as for settlement purposes. Id. Under Rule 70(a)(1), Tax Court Rules of Practice and Procedure, formal discovery may not be used until a party has attempted ‘to attain the objectives of discovery through informal consultation or communication.’ There is no evidence in the record to reflect that the parties have engaged in informal consultation or communication.” Order, at p. 1.

I note that State court judges have picked up on the play-nice concept of Branerton, intervening in discovery disputes only after the parties have failed to reach good-faith resolutions, and can document their efforts. State courtiers, watch for examples thereof in CLE lectures and in the courtroom.

But STJ Landy is only warming up. IRS claims Hiram and Doris are frivoling.

“Furthermore, the petition and the requests for formal discovery appear to be expressions of protest and contain nothing but frivolous or groundless recitations.  Petitioners’ attention is invited to Internal Revenue Code (I.R.C.) section 6673(a). If it appears to the Court that petitioners’ position in a proceeding before the Court is frivolous or groundless or the proceedings are instituted or maintained ‘primarily for delay’, then the Court can impose a penalty (not to exceed $25,000) on petitioners. Petitioners are advised that it appears to the Court that the position you have taken in this case is frivolous or groundless. No penalty will be imposed at this time. However, future submissions advancing a frivolous or groundless position will result in the imposition of a penalty in an amount up to $25,000.” Order, at p. 1.

Now I haven’t seen Hiram’s and Doris’ moving papers, so I can’t say. But that’s one quick Section 6673 yellow card. STJ Sport Landy is clearly no judge to be played.

When we left Mandy Mobley Li, 22 F.4th 1014 (DC Cir, 2022), she had laid waste to whistleblowers near and far. Among the decimated was that indefatigable hunchmerchant and public info overhauler Suzanne Jean McCrory, Docket No. 9922-19W, filed 9/30/22.

Judge Elizabeth A. (“Tex”) Copeland tossed Suzanne’s petition overboard to Liward (sorry, guys) back on 7/6/22. I never bothered to blog the order, as it was the usual no-cash, no-jurisdiction post-Li story.

Well, Mandy Mobley to the rescue, shouting once again the motto of a famous Highland regiment first set forth at the head hereof, as my high-priced colleagues would say.

Judge Elizabeth A. (“Tex”) Copeland has the story. When Suzanne got tossed, she had moved for partial summary J, and IRS had moved for leave to amend the answer. Judge Tex Copeland then held both motions moot.

“In issuing the July 6, 2022, order, we relied on the opinion of the Court of Appeals for the District of Columbia Circuit in Li v. Commissioner, 22 F.4th 1014 (D.C. Cir. 2022), holding that we lack subject matter jurisdiction over whistleblower cases, like this one, that involve a rejection of a claim for a whistleblower award. We stated that the judgment in Li was final.”On August 30, 2022, the Supreme Court docketed a petition for writ of certiorari as of June 16, 2022. Because a party timely sought a writ of certiorari, Li is not final. We accordingly will vacate our July 6, 2022, order. In so doing, we reopen this case, reverse our decision to deny the two pending filings at the time as moot, and hold those filings in abeyance until the Supreme Court issues a decision in Li.” Order, at p. 1.

See Section 7481 for what happens when “a party” petitions for cert.

And see what odds the bookies are giving for Mandy Mobley. If you’re a longshot bettor, she might be worth a play.