Judge Courtney D. (“CD”) Jones plays a variant on our old pal the percipient witness in Asia Zaheen, Petitioner and Kamran Ehsan, Intervenor, Docket No. 13863-22, filed 3/14/25 (Happy Pi Day!).

Intervenor Kam’s trusty attorney, whom I’ll call Louie, moved yesterday “to Compel Expert Testimony.” Motion involved psychological evaluation report and testimony concerning same. Taishoff says this is a wee bit rich, as trial is scheduled for Tuesday, and no Rule 143(g) moves had taken place.

Judge CD Jones had advised Louie in a conference call yesterday she wasn’t inclined to admit said report on Rule 143(g) grounds, or recognize the evaluator as an expert.

“Nevertheless, the Court acknowledges that Mr. S could testify (and be cross-examined) as a fact witness regarding his purported evaluation of intervenor and preparation of the report. Intervenor could then offer the report as a medical record. Accordingly, the Court will set the Motion to Compel for hearing at the commencement of the trial. If intervenor intends for Mr. S to testify at the hearing or at trial (or both), Mr. S must be present, in person.” Order, at p. 1. (Name omitted).

Note the witness is “Mr.,” not “Dr.,” although witness has a Ph.D. And if not qualified as an expert, isn’t his report weightless?

Oh, the backstory on percipient witnesses can be found in my blogpost “Percipient and Admissible,” 11/7/22.*

* https://taishofflaw.com/2022/11/07/percipient-and-admissible/

I wouldn’t be so presumptuous as to claim succession to the role of the late and much-lamented A. G. Linkletter, a hero of my childhood so long ago. But reviewing the activities of the self-representeds as they navigate the straits of The Glasshouse in the City of the Ongoing Purges is a strong temptation.

Gary L. Macintosh & Joanne Macintosh, et al., Docket Nos. 10864-23, 3218-25, and 3219-25, filed 3/13/25 (and I cite all three docket numbers because they play roles here) seem to be enmeshed in the toils of DAWSON, causing Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan to beg the Macintoshes to cease their electronic bombardment.

The Macintoshes started on paper, and their petition is on for trial on St. Patrick’s Day under the first hereinabove set forth docket number, as my high-priced colleagues would say. But the Macintoshes have exhibits and status.

“… without first having properly requested and received eAccess to their case at Docket No. 10864-23, petitioners apparently twice attempted to electronically file documents pertaining to their upcoming trial. As a result, petitioners inadvertently commenced two additional cases at Docket Nos. 3218-25 and 3219-25.” Order, at p. 1.

So Ch J TBS tells Ch Clk Charles (“Champagne Charlie”) Jeane to have his hardlaboring crew transplant the two errant cases as trial exhibits and a status report in the single surviving docket, and close the two outliers.

A docket search shows that the Macintoshes may have paid sixty Georges for each of their miscues. Do they get a refund?

Once again, I suggest that we really need another Tax Court Judicial Conference, just to sit around and swap war stories. Perhaps Ch J-elect Patrick J. (“Scholar Pat”) Urda might wish to consider complying with the Congressional mandate in Section 7470A by convoking one when he takes office.

I’ll preregister right now.

The webinar Best Practices when Appearing Before the U.S. Tax Court was an important guide, but unfortunately I could only view half of it. I am sure many other interested persons were not even able to do that.

Why these webinars are not recorded and archived for viewing after the original airing I cannot fathom. The “Trailblazers” series sponsored by then-Ch J Maurice B (“Mighty Mo”) Foley was thus preserved, so it cannot be that the technology is unavailable.

I found most interesting the statement of Judge Christian N. (“Speedy”) Weiler that he had looked at the list of registered attendees and had found none who transgressed the objectionable or careless conduct standards. Preaching to the choir, Judge?

I most respectfully suggest that webinars like this one be recorded, and mandatory viewing thereof be imposed upon wits, wags, wiseacres, and wannabes if they wish to continue to be heard in the Nationwide Play Before You Pay forum.

Judge Goeke has three (count ’em, three) off-the-benchers today, but as Karl Ludwig Johannes Baedeker used to say, there is little here to detain the tourist.

Organic Cannabis Foundation, LLC, et al., Docket Nos. 381-22L, 5442-22L, filed 3/12/25, admits it’s late with its CDP requests for the only year at issue in both cases, and has only the Michael Corleone gambit, classical variation, for Boechler equitable tolling. Hence, when remanded to Appeals and admits its failure of proof, Appeals gives the Organics a Decision letter off an Equivalent Hearing per Reg. Section 301.6320-1(i)(1).

“The law is clear that a Decision letter which is not subsequently deemed to be a Notice of Determination does not yield judicial review.” Transcript, at p. 7. (Citation omitted). No judicial review available because no NOD because no CDP because too late requested and equitable tolling folded.

Cacey Taylor, Docket No. 2699-24, filed 3/12/25, shows Judge Goeke going above and beyond, trying to extract from petitioner any basis to allow him more Uber-DoorDash miles deduction than what IRS allowed. Section 274 strict substantiation doesn’t apply to cabbies.

“Regarding the Uber transportation income and the DoorDash related income, the Court, at trial, spent significant time trying to elicit from the Petitioner a way in which the Court could estimate Petitioner’s mileage associated with these business activities. Petitioner consistently stated that he, at the time he filed the return, had an app on his phone which showed a total amount of miles which would have wiped out all of his income, but he chose not to use those miles and therefore he did not think he owed any tax. He also admitted that he no longer had that information and he never clarified whether the income associated with his Uber and DoorDash activities was the only basis for the miles that was captured on this alleged app.

“Given the lack of clarity and specific information underlying these assertions, the Court then attempted repeatedly to elicit from the Petitioner specific information that could be used to estimate additional miles other than those allowed by Respondent at trial associated with his driving activities. Petitioner just declined to do that, repeatedly.” Transcript, at pp. 4-5.

The allowed mileage stands. I’m not sure what petitioner thought to accomplish by refusing to provide anything.

Amanda Renee Stewart, Petitioner, and Ahmed Zeid, Intervenor, T. C. Sum. Op. 2025-3, filed 3/11/25, carried the “separate checks” principle to the max and beyond.

STJ Jennifer E. (“Publius”) Siegel tells all: “Petitioner and intervenor kept their finances largely separate throughout their marriage. For example, they would split joint household expenses by individually putting money for the specific item(s) into a shared account maintained for that purpose. If they gave a gift as a couple, they would each pay for half. The two tracked their expenses through a smartphone application and would periodically reconcile them, settling up when they did so. Petitioner frequently fronted the money for joint expenses and was later reimbursed by intervenor. The two did not own any property or investments together.” T. C. Sum. Op. 2025-3, at p. 2. And they each separately entered their information on the tax prep software for their 1040 MFJ for year at issue.

So when the parties divorce and IRS hits them with a SND, Ahmed claims it’s unfair to let Amanda Renee off the hook, and she should help him amend their return to let him pick up the unreported income and add some deductions from his business, in which she took no part.

STJ Publius isn’t interested.

“As an initial matter, the Court has no authority to require parties to amend their income tax returns. Further, we agree with the IRS’s concession that petitioner should be relieved from joint and several liability under section 6015(c) for the portion of the deficiency and penalty caused by intervenor’s unreported income from his business.” T. C. 2025-3, at p. 4.

Ahmed wants to relitigate the deficiency, but he never petitioned the SND. And innocent spouse cases are restricted to eligibility for relief. Amanda Renee checks all the boxes for Section 6015(c) apportioned. All Ahmed has is the Michael Corleone gambit, “don’t ask me about my business” variation.

I doubt Judge Travis A. (“Tag”) Greaves is old enough to have participated in the a capella singing style above-referred-to in the title first set forth at the head hereof (as my expensive colleagues would say). But the style so fits Judge Tag Greaves’ approach to the manifold motions he disposes of in Malibu Valley Land, LLC, Spectrum Development, Inc., Tax Matters Partner, Docket No. 20442-19, filed 3/11/25, that I might just could maybe so make it another Taishoffism, in this case standing for “denied without prejudice.”

The “win your case by preclusion” tactic is in full cry. There are five (count ’em, five) such, one from IRS and four from the Malibus.

IRS wants to stop inquiry into conduct and motives of certain employees in the Boss Hoss sign-off, which should be a Greenberg’s Express slamdunk. But Judge Tag Greaves says Boss Hossery may open the door.

“Two important questions in this case—whether the penalties determined in the administrative audit were properly approved in accordance with section 6751(b) and whether the burden of proof should be shifted to respondent under section 7491–expressly require us to review certain events that occurred during the audit. There are substantial uncertainties regarding these questions that we believe the witnesses that respondent seeks to exclude can answer. For example, petitioner alleges that Ms. J did not approve each penalty determined under section 6662 because the notice of proposed adjustment she signed did not specify each subsection under which a penalty was determined and the Form 886-A, Explanation of Items, which set forth the subsections was not prepared until later by an unknown IRS employee.” Order, at pp. 2-3. (Name omitted). Doowop.

Practitioners, take notice. Although IRS needs only a smidgen of basis for determining a deficiency (including chops) to raise presumption of correctness, here’s an opening.

The Malibus foursome are a series of reaches. As for two of them seeking to preclude IRS witnesses, IRS claims they’re not being called, so the Malibus can yell at trial if they’re ambushed. The documents these witnesses produced are addenda to the expert’s report filed, so the Malibus can attack these on cross. One has to do with a witness’ qualifications, which can be dealt with on voir dire.

The last Malibu bœuf has to do with an undisclosed witness. ” We agree that the parties generally reserve the right to call certain categories of witnesses that are not specifically identified. For example, parties often reserve the right to call witnesses to identify and authenticate documents. Respondent’s lack of identification of this witness falls in line with this practice. In fact, respondent provided more information regarding this unidentified witness than is typical. Respondent indicated that the unidentified witness will be a representative of the California Coastal Commission and that the topic of testimony will be the legal restrictions on the subject property. This disclosure provides ample information for petitioner to prepare for cross examination.” Order, at p. 4.

Conclusions of law from a witness who isn’t an expert, Judge? Judge Tag Greaves is also dubious, but for now it’s also a doowop.

Sketchy charitable donation deductions are not geographically limited; we have some good ones up here in the North. William J. Cade and Mary E. Cade, T. C. Memo. 2025-20, filed 3/10/25, claim they forgot to take a $283K charitable deduction on their 1040, so they file a 1040X which IRS bounces after Exam rejects it. The Cades can contest liability at their CDP, as the deficiency is self-assessed and not the result of a SND.

IRS goes one-for-three on summary J. The Cades’ trusty attorney strikes out swinging when he claims the Form 8283 is all-sufficient.

“Petitioners have advanced two arguments in urging that they secured ‘qualified appraisals.’ According to AO M, petitioners’ counsel took the position during the CDP proceeding ‘that a Form 8283 was sufficient’ and that ‘no other documentation needed to be provided.’

“Petitioners contended, in other words, that the Forms 8283 attached to the amended return were themselves ‘qualified appraisals.’ This argument is a non-starter. ‘Form 8283 is the form that the IRS prescribes for an appraisal summary.’ Savannah Shoals, LLC v. Commissioner, T.C. Memo. 2024-35, at *13 (emphasis added). Needless to say, an ‘appraisal summary’ is not the same thing as an ‘appraisal.’ The required contents for a ‘qualified appraisal’ are set forth in Treasury Regulation §§ 1.170A-13(c)(3) and 1.170A-17(a). The much more limited requirements for an ‘appraisal summary’ are forth in Treasury Regulation § 1.170A-13(c)(4). The regulations thus make clear that an ‘appraisal’ and an ‘appraisal summary’ are distinct documents.” T. C. Memo. 2025-20, at pp. 11-12.

When the appraisals show up, the appraisers themselves are a wee bit below grade. “Mr. P, the individual who appraised the clothing items, describes himself as the retired owner of the Unique Army Navy Store in Albany, New York. Mr. M, the individual who appraised the cobblestones, describes himself as a project supervisor and estimator for a company that does commercial stonework. Mr. Evans, the individual who appraised the vinyl flooring and adhesive, describes himself as ‘the operational supervisor’ at Discount Flooring Mart in Albany, New York.

“None of these individuals avers that he ‘regularly performs appraisals for which [he] receives compensation.’ § 170(f)(11)(E)(ii)(II).” T. C. Memo. 2025-20, at p. 13. (Names omitted).

And the defects are fatal: “Several of the requirements in question—e.g., that the taxpayer obtain on actual appraisal and that the appraiser ‘regularly perform[] appraisals for which [he] receives compensation’—demand strict compliance because they are imposed by the statute itself. See § 170(f)(11)(E)(i), (ii)(II).” T. C. Memo. 2025-20, at p. 14, footnote 8.

But Judge Albert G. (“Scholar Al”) Lauber finds fact questions in the CWA. Taishoff says there are plenty.

After arguing for 11 (count ’em, 11) months that the Form 8283 was a CWA, “petitioners finally supplied what purported to be an actual receipt from Victory Christian Church, ostensibly dated December 3, 2019. But the timing of this submission arouses suspicion. The Examination Division, AO M, and EAO L had been requesting a copy of the CWA for many months. If petitioners or their return preparer had this document in their files, it seems odd that it was not provided sooner.

“The receipt has other questionable features. It lists the three categories of items contributed and states that ‘[n]o goods or services were provided to the donor in return for donor’s contribution.’ But the signature is illegible, and the document does not indicate the signatory’s name or title.

“The receipt is dated December 3, 2019, the same date that appears in the ‘Donee Acknowledgment’ in Section B, Part IV of each Form 8283. But the address shown for the Church on the two documents is different. The Form 8283 lists the Church’s address as 118 Quail Street, Albany, New York 12206. The receipt lists the Church’s address as 1312 Central Avenue, Colonie, New York 12205. And while the signatures on the respective documents are both illegible, they appear to be different signatures. Given that the documents were ostensibly executed on the same day, these seeming discrepancies require explanation.” T. C. Memo. 2025-20, at pp. 9-10. (Names omitted).

Unscrambling this frittata is clearly ill-suited to summary J. I’m sure the trial testimony will be utterly absorbing.

Likewise the Section 170(f)(11)(A)(ii)(II) good-faith omission of the appraisal escape clause is a question of fact. Did the Cades exercise ordinary business care and prudence? I report, Judge Scholar Al will decide.

No dilithium crystals, mineral deposits, or brown-headed nuthatches, only cobblestones and vinyl flooring, but we up here in Excelsiorland have some good 170s too.

Prominent among their wares, CLE merchants tout winning your case anywhere but at trial. Winning by preclusion and exclusion are big sellers, as we see in Adrian D. Smith & Nancy Smith, et. al., Docket No. 13382-17, filed 3/7/25. Adrian and partners are transnational architects enmeshed in a brouhaha over Section 41 additional research credits for a trio castles (hi, Judge Holmes), one each in Dubai, Saudi Arabia, and Abu Dhabi. For backstory, see my blogpost “Castles in the Sand,” 12/18/24*.

Adrian wants Judge Christian N. (“Speedy”) Weiler to take judicial notice of a bunch laws (hi, Judge Holmes) from SA, UAE including Dubai, the UK, and the Berne Convention. IRS says they’re all irrelevant.

Judge Speedy Weiler will decide that. “…the question before the Court now, is whether we should take judicial notice of foreign law–not whether foreign law applies to the Contracts in question. The latter question will ultimately be decided by the Court, after trial. However, failing to take judicial notice now could hinder the Court in examining the legal issue of whether the foregoing foreign laws apply. Accordingly, we are inclined to accept petitioners’ Request for Judicial Notice, and then allow the parties (after trial) to present their arguments on whether foreign law apply to the Contracts in these cases.” Order, at pp. 2-3.

There’s also a bunch motions (ditto) to preclude experts’ opinions and exhibits, all of which Judge Speedy Weiler denies without prejudice as premature. There are reasons why we have trials, among which is to see what this stuff is, how it proves anything, and how it stands up to cross-examination and countervailing evidence.

* https://taishofflaw.com/2024/12/18/castles-in-the-sand/

It’s always a good idea to check court rules before you leap into action. IRS counsel didn’t, and provides an object lesson in Blake C. Allen, Docket No. 16229-24, filed 3/6/25.

Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan provides the lesson: “the above-referenced Notice of Withdrawal As Counsel for Respondent is recharacterized as a Motion to Withdraw As Counsel.”

Rule 24(c)(2) requires a motion when one is sole counsel of record for a party. Notice is sufficient if co-counsel remains on board. If you’re on your own, ask, don’t tell.

So says Judge Holmes in Estate of Barbara Galli, Deceased, Stephen R. Galli, Executor, et al., Docket No. 7003-20, filed 3/5/25. Son Steve and the late Barbara, before she became the late Barbara, executed a nine-year loan note for $2.3 million which Barbara advanced in full at mid-term AFR (then 1.01%).

In support of his motion for summary J that this was a loan, not a gift, hence not reportable on a 709 when made, Steve introduces the note, Barbara’s income tax returns reporting interest received, and Steve’s bank statements showing interest paid. There’s a fight over the worth of the unpaid balance of the note in Barbara’s estate, but that’s not at issue here.

IRS’ position isn’t entirely clear (see Order, at pp. 2-3), but Judge Holmes finds IRS isn’t saying the whole loan arrangement was a sham, only that the loan terms were below-market, hence a partial gift, and the worth of the unpaid balance of the note in Barbara’s estate is undervalued, so both gift and estate taxes are due.

Steve says Section 7872(c) says it all. If this is a loan (and Judge Holmes says it is, because Steve has the receipts and IRS has the Michael Corleone gambit, classic variation), the AFR controls. And while characterizing a transaction as a loan involves a multi-prong test, Judge Holmes don’t need no “prongification” or dancing with the prongs (Order, at p. 4) to give Steve summary J.

“To sum up, the issue on these motions are whether the transaction was a gift, a loan, or a partial gift. We determine that the Commissioner is not asserting that the transaction was entirely a gift and would lose on the proof if he were. That leaves us to apply section 7872, and under that section, this transaction was not a gift at all.” Order, at p. 5.

Applicable Federal Rate means Applicable.