In Uncategorized on 03/16/2023 at 16:56

An IRS partial summary J motion works in Nassau River Stone, LLC, GH Manager, LLC, Tax Matters Partner, T.C. Memo. 2023-33, filed 3/16/23. FL boondockery this time; Judge Albert G (“Scholar Al”) Lauber finds whoever had to sign when did sign when. How closely they looked at what they signed before they signed doesn’t matter. Boss Hossery OK.

“Petitioner alternatively contends that RA K should not be regarded as having made the ‘initial determination’ because his case activity record ‘shows that he spent only 64 hours on [p]etitioner’s [a]udit.’ But section 6751(b)(1) does not inquire into the depth or comprehensiveness of IRS officers’ review; it simply requires supervisory approval of the penalty recommendation. As we have said before: ‘The written supervisory approval requirement . . . requires just that: written supervisory approval.’ We have repeatedly rejected any suggestion that a penalty approval form or other document must ‘demonstrate the depth or comprehensiveness of the supervisor’s review.’ We do not second-guess the extent of the RA’s or the supervisor’s deliberations about whether penalties should be imposed. We confine our search to seeking evidence of written supervisory approval.” T. C. Memo 2023-33, at p. 8, footnote 3. (Name and citations omitted, but the cites are all cases I’ve blogged).

So before you ask “So what else is new?”, check out how Judge Scholar Al describes the Nassau Riverines’ seven (count ’em, seven) trusty attorneys’ attempts to raise questions of fact in this procedural joust.

“Petitioner struggles mightily, but in vain, to gin up a dispute of material fact.” T. C. Memo 2023-33, at p. 6. “Tilting at windmills, petitioner vainly probes for a dispute of material fact.” T. C. Memo. 2023-33, at p. 9.

“The ‘presumption of regularity’ likewise supports the actions of the IRS officers here. ‘The presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.’ It remains a well-settled rule that ‘all necessary prerequisites to the validity of official action are presumed to be complied with.’ * * * * Petitioner offers no evidence, much less ‘clear evidence’, to overcome this presumption.” T. C. Memo. 2023-33, at p. 10. (Copious citation of precedent omitted).

The point (and yes, I have one, for a change)? Judge Scholar Al shows the Nassau Riverines no Section 6673 yellow card, no Rule 33(b) OSC, not even a tiny reprimand, for eleven (count ’em, eleven) pages of wasted valuable Tax Court time and electrons.

But there’s a $17 million syndicated conservation easement deduction here. When Alberto and Virginia Delgado were fighting over a $49K employment discrimination settlement, Judge James S (“Big Jim”) Halpern laid an OSC on them and their counsel without any visible notice or warning for a delay-of-the-game chop, for arguments no more windmill-worthy than what was raised here. See my blogpost “Why The Chop?” 3/13/23.

Now lest I be misunderstood, judges have to run their own divisions without constantly looking over their shoulders. Trial judges see and hear the parties and counsel. They have to deal on the spot with the honest but ignorant pro ses, the rounders, wits, wags, and wiseacres, inept counsel, extras from Judge Judy reruns who wandered into the wrong courtroom. I don’t want a set of rigid guidelines for off-the-bench chops.

What I do want is a warning, whether in a previous case, a pretrial phoneathon, an order, or from the bench in a hearing, and a chance, however brief the circumstances require, for the errant litigant or litigator (or both), to repent and cure the transgression. If any remain obdurate, then let judicial wrath descend upon them heavily.


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