Judge David Gustafson is too modest. I am sure he has a better grasp of the principles of debt-vs-equity than he allows in Aventis, Inc. and Subsidiaries, Docket No. 11832-20, filed 8/15/23. And in the extremely unlikely case that he really “has modest experience with debt-vs.-equity issues,” Order, at pp.  1-2, he can check out my blogposts “The Scottish Play,” 6/19/12, and “The Baseball Fan Is On The Job,” 10/27/21.

Of course, neither he nor I can have any recent experience with FASIT qualification issues, as Financial Asset Securitization Investment Trusts, a species of subprime-mortgage-meltdowns-on-steroids, cratered in 2004 in the wake of Enron of infamous memory. These, which supposedly bundled short-term debt (credit card, quick-kick car loans), began in 1996; by the time Congress saw what damage these off-balance-sheet gameboys did, the game was long since up.

However, Aventis wants to go to trial after three (count ’em, three) years, with discovery still incomplete. Aventis suggests Judge Gustafson close down discovery on the debt-equity issue, bifurcate, and try that issue.

No, says Judge Gustafson, remarkably unobliging.

“…we perceive that the deliberate pace of the development of the case has been attributable to both parties, and that an abrupt acceleration and a soon cut-off would be unfairly disadvantageous to the Commissioner.

“As for bifurcation, it is true that sometimes bifurcation of a case to allow discovery and dispositive motions related to a single issue may be appropriate–usually where a relatively simple issue may resolve the entire case. But in this instance, the debt-vs.-equity issue that Aventis would press is fact-intensive.” Order, at p. 1.

But Aventis has the Taishoff fallback.

“We do not forbid the filing of a motion for summary judgment on October 30, 2023, as Aventis has forecast, but we do not anticipater [sic] that such a motion would move the case forward.” Order, at p. 1. Given the leisurely pace of such motions, bifurcating would likely lead to denial of summary J, necessitating rejoinder, and trying both issues together. Anyway, “… a single trial on both issues will likely enable the Court to understand and resolve each of the two issues better than if it addresses the issues seriatim.” Order, at p. 2.

So set up a discovery schedule and propose a trial date.

Maybe Anticipater was the father of Antipater, and thus the grandfather of Herod, who ordered the Slaughter of the Innocents. Fits right in with Tax Court.