No, not another set of Tax Court codes. These are the page numbers (presumably) of the missing pages of the Transcript of Judge David Gustafson’s off-the-bencher in Peter M. Budde, Docket No. 4911-22L, filed 12/4/24, which appears on the Tax Court website.

So I can’t tell you the bases for Judge David Gustafson’s decision “sustaining in part petitioner’s liability for the penalties at issue and sustaining the determination of the Independent Office of Appeals of the Internal Revenue Service to collect the penalties by levy.” Order, at p. 1.

And that despite the Certification of Transcriber and Proofreader, which appears at page 12 of the Transcript, that “the foregoing pages, numbers 1 through 12 inclusive, are the true, accurate and complete transcript” of the oral decision of Judge Gustafson.

Maybe the paper Transcript is true, complete and accurate, but the website version sure isn’t.

No, not the IRC nor the CFR. These are the “event codes” on the docket sheets, both printable and unprintable, to be found on the Tax Court website. While these are most of them self-explanatory (e.g., “P” for Petition, “A” for Answer, “NOTR” for Notice of Receipt of Petition), today I found one that was puzzling.

I couldn’t get an explanation by telephone, as docket section thought petitions were the ones that employed it, but neither they nor petitioner’s counsel was available by telephone. The event code is MIND, and the case is Cylie G. Fields, Docket No. 5819-23S, filed 12/3/24.

Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan’s order is brief: “the caption of this case is amended by adding the letter ‘S’ to the docket number.” Order, at p. 1. Unusual, as there’s no motion to restore the case to small-claimer treatment, nor any statement that the preceding regular case treatment was inadvertent.

A docket check shows that in April a year ago, when the petition was filed as a small-claimer, the initial docket number was amended the next day to omit the letter “S” suffix, with no explanation save the event code “MIND.” “My bad”?

Edited to add, 12/5/24: I heard today from Sarah Silfies Finken, Esq., Administrative and Case Services Counsel at Tax Court, that “MIN” signifies minute entry, that is, docket clerk’s entry to correct or supplement a docket entry, which may or may not be directed by an order of the Court; the letter “D” means Docket. While in this case there may have been an error, Ms. Finken notes that, with the huge volume of cases, there are very few errors. And indeed, in my experience, this is so.

And When and How

The above-set-forth is not a question, but an essential guideline for establishing client-attorney privilege, as STJ Zachary S. (“Highrise”) Fried judge-‘splains in Amgen Inc. & Subsidiaries, et al., Docket No. 16017-21, filed 12/1/24.

Y’all will recollect that back on 11/14/24 STJ Fried tossed Amgen’s claim that a PowerPoint slideshow from some attorney to a bunch unnamed Amgens (hi, Judge Holmes) was privileged. What, no? See my blogpost “A Note of Sympathy,” 11/14/24*.

Amgen tries a Rule 161 reconsideration motion, with declaration attached from Jacqueline (a/k/a Jackie) Samuels, wherein is asserted “‘the audience for such documents was limited to individuals within Amgen,’ and references the Declaration of Jacqueline Samuels which ‘provides additional context for these documents[,] . . . including an explanation of how these documents . . . were kept confidential within Amgen.’” Order, at p. 3.

OK, but what is missing from this picture? STJ Highrise Fried will tell us.

“…we conclude that the PowerPoint presentations and spreadsheets do not specify their audience or the individuals who had access to the documents. Neither the documents themselves nor petitioner’s privilege logs sufficiently identify the recipients of the legal advice or demonstrate that the communications were made in confidence between an attorney and a client. This omission is critical, as the attorney-client privilege is only applicable to communications made for the purpose of providing legal advice to specific, identifiable clients or their representatives.

“We note that petitioner’s motion for reconsideration, along with the Declaration of Jacqueline Samuels, provides additional information regarding certain withheld documents. This new information offers further details about the subject matter of the documents, explains the legal purpose they serve, and addresses their confidential nature. Had the additional information been included in petitioner’s privilege logs we expect that the scope of respondent’s motion might have been narrowed. The failure to identify the audience in the privilege logs or within the documents themselves waives the claim of attorney-client privilege as to the documents.” (Emphases added).

Not only is the importance of who, but also the importance of when and how, front-and-center when client-attorney is on the cards. Who sought advice, who provided the advice, when and how was the privilege asserted.

I suggest that Section 7525 FATPs (and maybe so USTCPs) should assure these particulars be explicitly set forth in the document itself, stating authorized recipients, with warnings to inadvertent readers or recipients to return or destroy on every page or slide. Moreover, the privilege log should reiterate the identities of the authorized addressees-recipients and recite warnings given as to each document.

* https://taishofflaw.com/2024/11/14/a-note-of-sympathy/

“Unless otherwise permitted by the Court, motions shall be separately stated and not joined together….” Rule 54(b), in pertinent part. OK, so the motion beloved by both IRS and yours truly gives rise to the partial summary J barrage in Desoto Holdings LLC, Desoto Investors LLC, Tax Matters Partner, Docket No. 13013-20, filed 12/1/24.

For backstory, see my blogpost “Stir Silt Till You Wilt,” 6/24/24*.

IRS has four (count ’em, four) motions seeking partial summary relief, but two are conjoined, so Judge Elizabeth Crewson Paris only allows three separate summary J types, but lets IRS file the conjoined motion in limine later on per the Pretrial Scheduling Order.

Not to be left out, the Desotos have their own partial summary J motion.

I’ve expressed doubts about Rule 54(b)’s exclusion of omnibus motions before now, but here even Judge Paris got confused. She had to set aside an earlier order where she or a Court clerk mistook one of the Desotos’ motions for partial summary J as a declaration in support. Order, at p. 1.

No wonder waitstaff hate separate checks.

* https://taishofflaw.com/2024/06/24/stir-silt-till-you-wilt/