Summary judgment motions are a favorite tactic of mine. They give discovery of your case, your adversary’s case, and, most importantly, what the judge thinks of both cases. But you have to make your case. IRS omits too many steps in The Harbinder S Brar FLP II, n.k.a. Bosh LP, Brar Property Management Inc., Tax Matters Partner, Docket No. 17763-19, filed 1/3/23. IRS hit la famille Brar with 24 FPAAs and 3 SNODS, to which la famille Brar filed 27 (count ’em, 27) petitions. IRS seeks summary J in all, and loses.

“Important here is what occurred during the examinations. The revenue agent summoned Mr. Brar for an interview. At that interview Mr. Brar invoked his Fifth Amendment right against self-incrimination to virtually every question the revenue agent asked. The revenue agent also summoned Mrs. Brar for an interview, but she declined to attend and offered to respond to written questions instead. The revenue agent sent Mrs. Brar written questions and she responded by invoking her Fifth Amendment right against self-incrimination in her written answer to every question.” Order, at pp. 2-3.

IRS wants Judge Elizabeth A (“Tex”) Copeland to draw a negative inference as to all matters and bar the Brars from putting in any evidence. Trouble is, Judge Tex Copeland isn’t having it.

There’s no showing that the Brars will take the Fifth on the trial. IRS’ motion papers don’t include tax returns or transcripts for entities and years at issue to establish what are the deficiencies, and don’t put in all the bank account reconstructions to show unreported income. And since IRS wants fraud chops, they need clear and convincing evidence, whatever the Brars put in. So the Brars need not even respond to this motion.

No summary J, but no prejudice either.

Taishoff says, wow! Judge Tex Copeland really rapped IRS’ metaphorical knuckles. And yet, it was worth a try.