Employee plan declaratory judgment cases are rare, so I won’t amplify STJ Jennifer E. (“Publius”) Siegel’s send-off to the trusty attorney for Solid Ground Transportation, Inc. & Solid Ground Transportation, Inc. Employee Stock Ownership and Profit-Sharing Plan, Docket No. 8843-23R, filed 5/28/24. I’ll call said trusty attorney JJ.

JJ sent in two (count ’em, two) petitions. IRS moves to toss the first for lack of jurisdiction, so STJ Publius stayed this one while she found jurisdiction, but bounced that one for duplication, stating that “both cases related to the same plan and period and were therefore duplicates,” Order, at p. 1. JJ asked for reconsideration, didn’t get it, and filed an appeal with 7 Cir. He doesn’t want a stay of this case while the appeal wends its way, rather wants to certify the lifting of the stay for appeal per Section 7482.

STJ Publius says no.

“The Court may certify an order for interlocutory appeal where it (1) involves a controlling question of law (2) about which there is a substantial ground for difference of opinion and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation.

“Petitioners fail to satisfy any of these requirements.” Order, at p. 2. (Citations omitted, but get them for your memo of law file).

First, wanting to have a stay is not a controlling question of law.

Next, JJ’s “assertion that the Tax Court’s ‘arriv[al] at a legal conclusion’ in the other case establishes the existence of substantial grounds for difference of opinion in this case only demonstrates petitioners’ misunderstanding. Generally, the ‘substantial ground for difference of opinion’ test is interpreted to involve questions that present serious and unsettled legal issues. There are no unsettled legal issues pertaining to the Order lifting the stay in this case. Petitioners suggest that the parties’ disagreement about jurisdiction in the other case satisfies this test. This suggestion, aside from being related to the wrong case, is incorrect.

“We note, too, that, under the circumstances presented, an interlocutory appeal of the Court’s …. Order lifting the stay would not materially advance the litigation. It would instead cause further delay: petitioners indicated in their most recent Status Report that they were unwilling to stipulate the certified administrative record while the appellate case is pending.” Order, at pp. 2-3.

Anyway, DJs are based on the administrative record, so JJ’s motion for discovery to supplement the administrative record is denied, as he’s not shown good cause therefor.

And STJ Publius already extended the time for filing the administrative record, so JJ’s motion to extend the time is moot.

Takeaway: As with most NOD cases, the time to build your record is at Exam and Appeals. The greatest number of NOD cases (CDP, DJ, IC-vs-EE, 501(c)(3), passport grabs, innocent spousery, oiffshore assets) were won or lost long before the petition hit the Glasshouse.