This was a hot topic years ago among us Excelsior State courtiers: could one rescue a late filing on the basis that the party’s attorney missed the cutoff? Turned out that, barring prejudice to the diligent, most of the time law office failure was an adequate excuse.

STJ Adam B (“Sport”)  Landy has recourse to that calculation in Thornell Johnson, Docket No. 17082-22SL, filed 4/14/23. Back in January, Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan told IRS to man-‘splain why they should be allowed to file a late answer to Thornell’s petition to toss his various preparer penalties. IRS was late by two (count ’em, two) days after Thornell’s motion to dismiss and for summary judgment.

I told the story in my blogpost “All Those Old Familiar Faces – One Mo’ Time,” 1/31/23, which includes Thornell’s appearance here ten years ago.

STJ Sport Landy: “Although the Commissioner filed the Motion for Leave and lodged his Answer two days late, Mr. Johnson has not shown that the delay has caused him to be at a disadvantage or any form of prejudice. This Court has the discretion in the interest of justice to allow pleadings to be filed out of time, and the Court will allow the Commissioner to file his Answer out of time in this case.” Order, at p. 2. (Citations omitted, but check out Rule 25(b)(1)(B)).

As for summary J, giving nonmovant IRS the benefit of the doubt and scoping out Thornell’s averments, questions of fact remain as to all issues raised in his papers.

Taishoff says: But given that there is no limit to the number of motions for summary J (complete or partial) subject only to the Rule 121(b) temporal cutoffs, petitioners might do well to consider IRS’ tactic du jour and make motions for partial summary J, being careful to avoid the shoals of Rule 121(i).