I am sure the United States Tax Court bench is home to elegant wits, despite Judge Posner’s derogatory remarks about the “lame attempt at humor” of Judge Wherry (see my blogpost “There Goes the Neighborhood, 9/3/13*).

Now Judge Ronald L. (“Ingenuity”) Buch is certain that Tax Court precedent supports the grand horizontals that Cornelia Otis Skinner so elegantly evoked so long ago.

Here’s Desmond McGuire & Cory Lynne Brame, et al., Docket No. 25461-16, filed 12/26/24, leading off a bunch cases (hi, Judge Holmes), jousting about certain chops.

“The applicability of a penalty under section 6662(b)(6) or (i) turns on the application of section 7701(o). That issue is pending, fully briefed, in another case. The parties are aware of that case, and the Court invited amicus briefs in that case. See Order served July 19, 2024 (docket no. 24344-17 et al.). This Court generally applies horizontal stare decisis. See Harold Dubroff & Brant J. Hellwig, The United States Tax Court: An Historical Analysis 753 (2d ed., 2014). Because this Division of the Court will likely be bound by the outcome of another case, to conserve both the Court’s and the parties’ resources, we will postpone trial.” Order, at p. 1.

Section 7701(o) is Congress’ attempt at “Clarification of Economic Substance Doctrine.” I’ll let the opinion, when it finally issues, speak for itself.

Oh, and horizontal stare decisis is described by D&H as follows: “The Tax Court has a strong institutional interest in maintaining integrity in its decision-making process, and the institutional integrity of the court would be undermined if each judge felt free to issue a decision adopting a holding or analysis that could not be reconciled with that of a prior memorandum opinion. Thus, the court’s interest in decisional consistency results in considerable respect being afforded to prior memorandum decisions as a practical matter.” Idem, as my expensive colleagues would say.

In short, don’t contradict your colleagues, judges.

Btw, that above-cited Order of 7/19/24 is more particularly bounded and described in my blogpost “Relevant and Novel,” 7/19/24.**

* https://taishofflaw.com/2013/09/03/there-goes-the-neighborhood/

** https://taishofflaw.com/2024/07/19/relevant-and-novel/