That’s another virtue of summary J; it exposes adversary’s weakness. But there’s a vice: it exposes yours. While the nonmovant gets all the breaks and you lose your motion thereby, you know where you need to strengthen your case if you have to go to trial. But you can overdo it.

I’ll leave any account of the tangled family buyout trail in Estate of Clark J Levi, Deceased, Nathan D. Clark, Administrator, Docket No. 34455-21, filed 1/30/25, to Judge Christian N. (“Speedy”) Weiler, whose grasp of these maneuvers exceeds mine, despite such neologisms as “As way of illustration,” Order, at p. 4. I humbly suggest either “As an illustration,” or “By way of illustration.” And I’ll also exclude speculation about the regulatory kerfuffle that triggered renegotiation of the buyout deal and stirred up the $1,306,284 payout to the bought-outs.

The late Clark J., before he became the late Clark J., deducted same as a Section 162 ordinary-and-necessary. Rather than disallowing, IRS says it has to be capitalized. Both cross-move for summary J.

Neither gets it.

“… respondent cites us to provisions of contracts and deposition testimony, however, petitioner objects on the grounds that the contracts ‘do not support respondent’s factual assertion’ or that ‘respondent’s factual assertions’ are rebutted by other evidence. In fact, petitioner’s Response contends that respondent ‘attempts to simply [sic] a complex and nuanced set of facts involving family and friends operating a highly regulated pharmaceutical operation with sales across multiple states.’ Considering the above factual disputes, we do not find summary judgment to be appropriate.” Order, at p. 4.

Judge Speedy Weiler draws the line.

“The parties are urged to minimize the time and expense of trial, if trial becomes necessary, by entering into more comprehensive stipulations, without disputed characterizations, that include all documents any party deems relevant and a narrative in chronological order of the organization and operation of the entities and relevant transactions. Further, the parties are urged to minimize time-consuming motions that can be avoided by negotiation between or among counsel.” Order, at p. 4. (Emphasis added.)

IOW, don’t use summary J as a hook to turn the Tax Court Bench into special masters supervising discovery. And don’t try for summary J where you have zero basis. ” The parties also seek summary judgment with respect to the penalties asserted by respondent in the notice of deficiency. The parties, however, have neither established nor negated a reasonable cause and good-faith defense to the penalties.” Order, at p. 4. The standard IRS tactic of moving for summary J on Boss Hossery to sustain chops doesn’t always work.