Judge David Gustafson is a model of courtesy. Arthur M. Bialer, Docket No. 6983-19W, filed 5/14/25, has furnished Judge Gustafson much material, and furnished me no fewer than six (count ’em, six, and I have) blogposts. I have already designated Arthur as successor to the late Fighting Joe Insinga.

It seems Arthur wants to take his war with DC Cir’s view of whistleblowing to a “pre-trial” conference in Tax Court. While Judge David Gustafson isn’t quite so obliging, he’s perfectly willing to let Arthur take the hold off IRS’ summary J motion. Judge Gustafson put Arthur’s case on hold pending appellate decisions in Lissack and Shands, both of which I blogged at Tax Court (I leave appeals to the trade press and blogosphere). Those appeals having been decided and become final beyond possibility of further appeal, Judge Gustafson was waiting on Meidinger (which I blogged) and Kennedy, T. C., Memo. 2021-3 (which I didn’t).

Leaving aside the obvious point that there are no Tax Court trials in Section 7623 whistleblower cases (they’re all record-rulers; did the Whistleblower Office abuse its discretion, based on the administrative record as permissibly supplemented?), Judge Gustafson will let Arthur respond to IRS’ stalled summary J motion without the benefit of any good language that an appellate decision in either Meidinger or Kennedy might afford him.

“In describing the context of this case, petitioner’s motion refers to ‘grossly erroneous judicial decisions’ of the Tax Court and the Court of Appeals; refers to ‘cases in which the Court of Appeals has issued one or more opinions in gross error, and under procedural circumstances that shock the conscience’; and explains that ‘each of the holdings that led, directly or indirectly, to Shands [cited above]— Cooper [v. Commissioner, 136 T.C. 597] (2011), Cohen [v. Commissioner, 139 T.C. 299 (2012), aff’d per curiam, 550 F. App’x 10 (D.C. Cir. 2014)], Kasper [v. Commissioner, 150 T.C. 8 (2018)], and Li [v. Commissioner, 22 F.4th 1014 (D.C. Cir. 2022), abrogating Lacey v. Commissioner, 153 T.C. 146 (2019)]—was devoid of analysis based on relevant legal authority, and each was issued under appalling procedural circumstances’.” Order, at p. 2.

With becoming delicacy, Judge David Gustafson suggests “(W)e therefore tentatively conclude it is likely that petitioner intends to respond to the motion for summary judgment by filing a response that proposes that multiple precedential opinions of this Court and of the Court of Appeals should be overruled.” Order, at p. 2.

Unhappily, Golsen. Pore l’il ol’ Tax Court can’t overrule DC Cir, and meek and modest Judge David Gustafson can’t overrule a bunch his colleagues (hi, Judge Holmes) all on his lonesome.

But Judge Gustafson has an offer that Arthur can refuse or accept.

“We are inclined to await the D.C. Circuit’s opinions in Kennedy and Meidinger before deciding the Commissioner’ motion for summary judgment in this case. We would have supposed that petitioner might likewise prefer to await those opinions so he could take them into account in composing his opposition to the Commissioner’s motion. But if he would prefer to file his opposition now, we will allow it.” Order, at p. 3.

So Arthur, the choice is yours: file your answer to IRS’ summary J motion, or file a status report stating that you’ll await the outcome of the aforesaid appeals, or make “another appropriate filing.” Order, at p. 4.