Ninth Circuit and Daniel S. Jacobs, Docket No.7118-19, filed 10/10/24, want Judge Emin (“Eminent”) Toro to “consider the merits of Jacobs’ claim that, in light of the information the CIR had received in the administrative proceedings, the CIR’s litigation position was unreasonable.” Jacobs v. CIR, No. 21-71211, 11/4/22, at p. 5.*

Judge Eminent is happy to respond, giving even Judge David Gustafson a run for his cliché in the Obliging Stakes. He has sixty-four (count ’em, sixty-four) pages, wherein he reviews “Attorney/Professor/Author” Dan’s submissions and IRS’ responses thereto from audit to Appeals to Tax Court to 9 Cir and back again.

No stone, nay, no pebble nor grain of sand, is left unturned. Dan loses. Again.

And note Judge Eminent’s gloss on ABA Model Rule of Professional Conduct 3.7, Attorney as Witness.

“[N]umerous courts and commentators have recognized [that] the only justification for the attorney testimony rule that might be viewed as affecting the rights of the opposing party is that derived from the fear that the jury will either accord such testimony undue weight, or will be unable to distinguish between the attorney’s testimony, offered under oath, and his legal argument, offered in rhetorical support of his client’s case. [T]he majority of these courts have also recognized [that] this justification is inapplicable where, as here, the testimony is made to a judge, not a jury.” Order, at pp. 61-62. (Citations omitted).

For my previous takes on “Attorney/Professor/Author” Dan’s battles with CIR and his minions, see my blogpost “Depositions? Bah!” 11/9/23**, and “Do Be Do Be Do Be Do,” 12/18/23***.

* https://casetext.com/case/jacobs-v-commr-of-internal-revenue-39#p2

** https://taishofflaw.com/2023/11/09/depositions-bah/

*** https://taishofflaw.com/2023/12/18/do-be-do-be-do-be-do/