I want to give the trusty attorneys for Southland Aggregate, LLC, Green Creek Resources, LLC, Tax Matters Partner, Docket No. 2148-24, filed 9/18/25, whose names are set forth at p. 8 of said order, a Taishoff “Good Try, Hail Mary Division, Third Class, with Titanium Clasp.”

It’s another Rule 248(b)(4) last-minute jump-in, when the motion for entry of decision in the settled Dixieland Boondockery is about to be inked. I’m not going to link to my blogposts, which have beaten this move to death. Judge Adam B. (“Sport”) Landy cites all the relevant caselaw, which said trusty attorneys seem to have missed (see infra, as my expensive colleagues would say).

This one has the wannabes voting in favor of settlement, but now claiming it will cost them money. As usual, they don’t claim the TMP misled or ghosted them.

But the trusty attorneys come into their own when they claim to be ready to try the case in January, and then walk it way back. Judge Sport Landy is positively douce.

“When questioned by the Court about the timing of a trial on the merits in this case, counsel for the Objecting Nonparticipating Partners indicated they would be ready for trial in January 2026. Upon further questioning, however, counsel for the Objecting Nonparticipating Partners became noncommittal on timing, stating that once this case is calendared for trial ‘[they] can hit the ground running and proceed with the case, [they] would have a better idea of what would – what’s needed to get to trial. So I don’t want to say conclusively that January [2026] [they]’d be ready.’ Counsel for the Objecting Nonparticipating Partners indicated during the hearing that they understood the risks of litigating this case on the merits and were prepared to see it through to any potential appeals. However, they admitted that they had not read several recent Court decisions that are relevant to many of the issues in this case. We also note that counsel for the Objecting Nonparticipating Partners acknowledged that they have never tried a conservation easement case. Given that the Objecting Nonparticipating Partners have not conducted any independent discovery or engaged any expert witnesses, read any of the pleadings in the case, or taken any steps to review the 2017 Form 1065 return and its accompanying appraisal, we determine that the Objecting Nonparticipating Partners would not be ready for trial by January 2026. While the Objecting Nonparticipating Partners may be willing to proceed to a trial on the merits in this case, they failed to demonstrate their readiness and ability to do so.” Order, at p. 7.

No, not a typographical error in the title of the tome that gave birth to the celebrated line “Tell ’em what they want to hear and you’ll make the deal.” Judge Emin (“Eminent”) Toro tells Estate of Patrick Heiniger, Deceased, William A. Cahill, Jr., Ancillary Administrator c.t.a. and Alicia Heiniger, Ancillary Executor, Docket No. 8096-17, filed 9/18/25 part of what they wanted to hear, namely, that they and IRS’ counsel can work on redacting personally identifiable information from their filings, but a blanket seal is off the table. Likewise, Tax Court might seal discovery material that never makes it to trial, but sealing what evidence goes in needs a strong case, like trade secrets. And petitioners here aren’t in a trade or business.

The late Patrick had an art collection to die for, and he did. Both ex’r and adm’r, and intervenor (whom I’ll call Hana, who is alleged to have removed some of the artistic goodies from the estate), want the titles of the works and the names of their creators sealed, lest this information embolden the Matthew 6:19 types, or worse, chill the FMV of these masterpieces.

Judge Eminent: “The Estate and intervenor claim that, absent a protective order, the market value of identified artwork might decrease and the likelihood of attempts to steal identified artwork will increase. But the Estate and intervenor supplied only their own statements in the Motions, and a declaration from intervenor herself, to support their claims of harm. They have not provided factual data or other evidence to corroborate or support those claims. Such conclusory and unsupported statements are insufficient to establish good cause.

“Moreover, the Estate and intervenor have not demonstrated that their interests in protection from alleged harms outweigh the ‘strong common law presumption in favor of access to court records.’ Willie Nelson Music Co., 85 T.C. at 921. Our Court routinely discusses works of art, including their titles, the artists who created them, and their value, in its opinions. See, e.g., Lio v. Commissioner, 85 T.C. 56, 59 (1985) (providing the names of the artwork in dispute and the fact that the taxpayer donated the artwork); WT Art P’ship LP v. Commissioner, T.C. Memo. 2025-30, at *3, 7 (providing the names and valuations of five pieces of art donated by the taxpayer to the Metropolitan Museum of Art in New York City as well as the names and sale prices of comparable works of art).” Order, at p. 5. (Citation omitted, but for WT Art P’ship, see my blogpost “Antiques Roadshow It Ain’t” 4/9/25).

I get appeals from time to time to delete blogposts. Mostly I don’t; Tax Court is public and none of those who make such appeals to me have the public persona of Willie Nelson. To save any prospective applicants their time, I’ll just quote Judge Eminent Toro.

“The principles governing the sealing of records before this Court are set forth in Willie Nelson Music Co. and subsequent decisions. As a general rule, the official records of all courts are to be open and available for public inspection. Willie Nelson Music Co., 85 T.C. at 917 (citing Nixon v. Warner Communications, Inc., 435 U.S. 589,597 (1978)); see also United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). The presumptive right to access, however, ‘may be rebutted by a showing that there are countervailing interests sufficient to outweigh the public interest in access.’ Willie Nelson Music Co., 85 T.C. at 919. Therefore, the public right to judicial records is subject to the discretion of the presiding court to control and seal upon an appropriate demonstration of good cause. Id. at 917–918; see also Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)(discussing discretion under [FRCP] Rule 26(c)). In exercising such discretion, the court “must weigh the interests of the public, which are presumptively paramount against those advanced by the parties.” Willie Nelson Music Co., 85 T.C. at 919.” Order, at p. 3.

You can’t unring a bell.

And a word to practitioners: Remember, before you blithely counsel a client to send in the sixty Georges and a petition, your client is going public. Yes, personally identifiable will be redacted and whistleblowers will mostly get cover, but in deficiencies and CDPs years, amounts, what was income and what deductions, business dealings, and much else will be out there for anyone to see for a nominal fee to the Glasshouse Copycats. A casual motion to seal won’t get it. And Taishoff might could just maybe so pick it up. And you might get The Phone Call.

You’d best make a substantial showing per Rule 248(b)(4) when you show up on eve of entry of decision in a settled TEFRA case. Yes, the partners in Blomquist Holdings, LLC, Crestlawn Investors, LLC, Tax Matters Partner, 165 T. C. 6, filed 9/17/25 have a statutory right to participate, but only per Court Rules, Section 6230(l). Had the Blomquists been timely with their participation petition, they could have come in without qualification. But to wait until entry of decision, with no allegation that the TMP kept the objectors in the dark about the litigation, doesn’t get it.

Chimney Rock, which I blogged under the title “The Perpetuity Punt – Part Deux,” 5/1/25, and which Judge Elizabeth Crewson Paris quotes extensively in Blomquist Holdings, tells the rationale.

The 39 (count ’em, 39) wannabes (scheduled in 165 T. C. 6, at p. 3, footnote 5) haven’t explained why they were free-riding on the TMP, nor shown that the TMP was conflicted out. What isn’t said is that the TMP got as decent a settlement as I’ve yet seen in a Dixieland Boondockery. “Respondent proposed (1) to disallow $53,830,000 of the charitable contribution deduction Blomquist claimed for its conservation easement donation, (2) to disallow $1,405,000 that Blomquist claimed as an ‘other deduction,’ (3) to allow an ‘other deduction’  of $11,657,800, (4) to impose a section 6662(h) accuracy-related penalty of only 10% and concede the remaining penalties, and (5) to refrain from imposing the 2% of adjusted gross income floor under section 67 on the allowed ‘other deduction.’” See 165 T. C. 6, at p. 4.

Practice tip: “The individual Motions and Notices filed by the 38 partners were filed with the Court as a single document, rather than separately filed. The Court determined that the Motions were timely filed but did not conform to the Court’s Rules. Therefore… the Court directed each Objecting Nonparticipating Partner to separately file a Motion for Leave to File a Notice of Election to Participate and to lodge therewith a separate Notice of Election to Participate.” 165 T. C. 6, at p. 5. Separate checks, but there’s a reason here. Each partner is separately situated; the capacity of one to litigate the case effectively differs from the others. Some may make the cut, others not.

The above illustration of multitasking reflects my frustration with such orders as Estate of  Mark L. Butler, Deceased, Michael L. Bangs, Executor, Docket No. 12489-23, filed 9/16/25. A motion by the ex’r’s trusty attorneys, the sort of omnibus pretrial deck-clearing motion found in State and Federal courts gets tossed by Judge Tamara W. Ashford.

” Pursuant to Rule 51 of the Tax Court Rules of Practice and Procedure, petitioner’s… motion is not proper, however, because what he seeks should have been stated in separate motions and not joined in one motion. Accordingly, we will deny the motion but note that a motion to compel responses to interrogatories and a motion to compel production of documents may be separately filed with the Court, which the Court will act upon in due course. Additionally, we will direct the parties to inform the Court in a joint status report what weeks… they would be amenable to having this case scheduled for trial at a Special Session of the Court in Philadelphia, Pennsylvania.” Order, at pp. 2-3.

The ex’r’s trusty attorneys asked for responses to interrogs, doc prod, and what looks like a run-of-the-mill scheduling order. Nothing exotic.

But the Rule 51 rationale is strange. The Rule speaks of a “more definite statement” where a pleading is “so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.” Rule 51(a).

The 1973 notes to Rule 51(a) state “(A) pleading may be sufficiently definite or represent a sufficient statement, and yet the adverse party may be entitled to further Information for other reasons. In that event, other procedures, such as those to which cross-reference ls made in this Rule, should be used rather than the motion for a more definite statement.” 60 T. C. at p. 1092.

As no reference is made to indefinite or ambiguous language in the specific omnibus motion at issue here, I cannot tell how IRS’ counsel (for whom this is obviously not their first trip to the pitcher’s mound) cannot respond. One would assume that they encountered omnibus motions in USDC, USCFC, or CCA. Or maybe even in law school.

I can understand that where self-representeds are involved, omnibus motions should not be allowed. One the one hand the omnibus motion might be a harassment tool for the defier/protester/rounder. On the other, the good faith but hapless pro se might crumple when confronted by an IRS blockbuster.

In a case, as here, where both IRS and the petitioner have sent out the first team, and the Tax Court bench, which is as skillful as any bench anywhere, is on the job, the omnibus might save time and scarce judicial resources.

Three (count ’em, three) procedural orders useful for crammers for the biennial Tax Court non attorneys’ admissions exam (s/a/k/a Slaughter of the Innocents).

Duane P. Kuck & Cindy-Leigh Kuck, Docket No. 13724-24, filed 9/15/25, and called off-side by STJ Diana L. (“Sidewalks of New York”) Leyden. Seems trusty attorneys for Duane & Cindy-Leigh served their Branerton demand too soon. “A necessary predicate to a motion to compel is that a party must make a formal discovery request, and that request must be made after a case is at issue but not before 30 days after the case is at issue. See Rule 38 and Rule 70(a)(2). Petitioners served formal discovery (i.e., an interrogatory) on respondent 5 days after the case was at issue and thus, failed to comply with Rule 70(a)(2). Accordingly, because petitioners’ formal discovery was premature the Court must deny petitioners’ Motion to Compel.” Order, at p. 2. Of course they can try again, but if what they want is a conclusion of law, that won’t get past STJ Di. Order, at p. 3.

Ricky T. Burningham, Docket No. 19625-22L, filed 9/15/25, has his previous Tax Court appearances scheduled by Judge Mark V. (“Vittorio Emanuele”) Holmes; Ricky’s batting average isn’t great, but he does win one year. Appeals can’t produce the USPS 3877 for the SND for the one year in the four (count ’em, four) years that Ricky is contesting. The “Form 3877 is a standard post-office form that lists certified mail, the address of the recipient, and is stamped with a postmark.” Order, at p. 3. According to Hoyle, that means Ricky and IRS go back to Appeals so the SO can figure out what basis s/he had to determine that IRS sent the SND to Ricky by certified mail. If s/he can’t find proper basis, the lien is invalid, but Ricky doesn’t get to contest the amount of his liability. “The failure by the Commissioner to prove that he assessed that liability only after he mailed a notice of deficiency to Mr. Burningham is a failure to prove that he assessed the liability correctly. Without that, the lien itself would be invalid as to the [year at issue].” Order, at pp. 3-4.

Southwest Emergency Physicians, PLLC, The Real Kahuna Corporation, Tax Matters Partner, et al, Docket No. 8795-16, filed 9/15/25, but there are eight (count ’em, eight) conjoined cases here. The case goes to show what happens when cases drag on for years. IRS demands documents that the Southwesterners claim they already provided, and anyway they conceded the disallowed deductions (this is a microcaptive insurance case). All they’re fighting about now is chops, and most of what IRS wants is unrelated to chops. Besides, it’s burdensome, the PLLC is out of business, and most of the partners are dead. So Judge Travis A. (“Tag”) Greaves denies IRS’ motion to compel production without prejudice. “Respondent may narrow the scope of his request to only those documents related to the penalty issue. If a mutual agreement is not reached, respondent may use his discretion to file a motion to compel with this Court.” Order, at p. 3. Taishoff says I wonder why the Southwesterners’ trusty attorneys, for whom this is not their first rodeo, didn’t get some concessions out of IRS’ counsel on the chops before conceding the deductions.

Whether Pliny the Elder or Seneca first said it, the template remains. Ex CLEflogger semper aliquid novi. Today, it’s yet another novelty in the peddler’s pack, and even though they’re on for trial Monday, FBA St. Clair Property C, LLC, Jeffrey L. Smith, Partnership Representative, Docket No. 14406-23, filed 9/12/25, have a motion in limine that’s a real swangdangler.

I’ll turn it over to Judge Elizabeth A. (“Tex”) Copeland. The C-Clairs request “(1) ‘the Court exclude from trial all evidence relating to tax filings of other taxpayers, other entities, and other tax liabilities not before this Court’ and (2) that ‘the Court rule in advance of trial that Respondent is prohibited from introducing evidence related to any property or taxpayer other than [St. Clair C] and FBA St. Clair Property, LLC (‘St. Clair A’).]'” Order, at p. 1.

“This request was made without regard to whether any such evidence might be relevant to the issues presented in this case, such as a donation or valuation of a property adjacent to or in the same County as the subject property.” Order, at p. 1.

I need hardly award a Taishoff “Good Try, Hail Mary Division” to the redoubtable Vivian D. (“Golden”) Hoard, Esq., C-Clair’s trusty attorney. Be there scarcely enough ice to chill a London pub pint (45 F.), and be the sun at zenith, VDH is on the march.

Judge Tax Copeland isn’t having any.

Judge Tex Copeland will seal any taxpayer info that Section 6103(h)(4) doesn’t cover, and publicly available info like recorded deeds, sales contracts, local property tax records, testimony from sellers, and judicially-noticeable 201 FRE stuff go in anyway, unshielded by Section 6103.

Of course, VDH and her trusty and battle-hardened colleagues can object to individual items on 402 and 403 FRE bases, and anything else they can think of, at trial.

Finally, that the C-Clairs stiped to be bound by evidence in a test case doesn’t preclude introducing relevant and probative evidence here or prevent Judge Tex Copeland from blocking any irrelevant or incompetent evidence. While principles and parameters are limiteds to those in the test case, valuation of real property is always a one-off, as every piece of real estate is unique.

No, not a law firm, rather the Scylla and Charybdis whereupon founder Section 7623 whistleblower discovery demands. STJ Diana L. (“Sidewalks of New York”) Leyden drives home again the ironclad record rule limitations in Joshua L. Gottlieb, Docket No. 23996-18W, filed 9/12/25.

Josh’s trusty attorney, whom I’ll call Scott, wants to supplement the administrative record “with documents in connection with the examination performed by IRS employees and communications between those employees and an IRS criminal investigation division special agent. Petitioner has not proffered any such documents. To the extent the Court can construe petitioner’s Motion to Supplement the Administrative Record as a request for discovery, that relief is typically not available in administrative record cases, such as this one. See Berenblatt, 160 T.C. at 534. The Court has held that the administrative record filed by respondent enjoys a presumption of correctness absent clear evidence to the contrary. Berenblatt, 160 T.C. at 534. There exists a narrow exception to this presumption if the party moving to compel discovery makes a significant showing that it will find material in the WBO’s possession indicative of bad faith or an incomplete record.” Order, at p. 4.

Scott has neither documents nor anything to show bad faith, at least not enough to pass muster with STJ Di.

IRS’ paperwork, though not of the best, shows that they knew about some of what Josh claims four (count ’em, four) years before Josh blew, was already auditing some at the time, and on the rest took no action.  Order, at p. 2.

I fear my advice comes too late for FBA St. Clair Property C, LLC, Jeffrey L. Smith, Partnership Representative, Docket No. 14406-23, filed 9/11/25. The C-Clairs claim IRS refuses to stipulate that the C-Clairs had donative intent despite two (count ’em, two)  previous stips replete with the word “donation” defining the easement grant (just shorthand, says Judge Elizabeth A. (“Tex”) Copeland) and an uncontested CWA saying no goods or services.

Judge Tex Copeland says the CWA covers only what the 501(c)(3) guardian gave, not what other benefits the C-Clairs may have gotten (here access to landlocked property).

The SND had the usual IRS buckshot boilerplate “you didn’t comply with Section 170,” which takes in everything in the multipart statute and impenetrable regs. So 170(c) donative intent isn’t new matter, and anyway it’s mixed law and fact.

Practice tip: when confronted with this broadbrush maneuver, track the statute in your first request for stipulations. If you are going to stipulate, sell your concessions as dearly as you can.

Judge Emin (“Eminent”) Toro confronts the old Sub S low-wage-high-profit gambit, whereby the operators pay themselves minimal salaries subject to FICA/FUTA and maximum profits which aren’t.  Ayla A. Savage, 165 T. C. 5, filed 9/11/25, mixed the dodge with the guided Congressional largesse of TCJA, specifically Section 199A, deducting all such payments, whether subject to FICA/FUTA (so-called “W-2 wages”) or not.

Moreover, Ayla and fellow Sub S-er Patricia, with whom she is here conjoined, were potters, so Section 280E’s anti-doper provisions are in play as to two of their three Sub Ss.

The parties stiped out everything but whether the total wages paid by the Sub Ss or the reduced amount IRS allows get the Section 199A deduction.

The usual tax law setup: W-2 wages, which are deductible, are defined as everything in Section 6051(a)(3) and (b), except anything that is not qualified business income (as defined in Section 199A(c)(1) and not reported on a Form 941. The 6051 stuff is salary and wages and deferred comp and tax-advantaged retirement account contributions. Now even stuff reported on Form 941 (and the W-2 the employee gets) may not make the Section 199A cut if it’s not properly allocated to qualified business income.

So plain meaning, which sets up the usual dictionary chaw and psycholinguistic hopscotch, ably performed by Judge Eminent Toro, 165 T. C. 5, at p. 8. As the pidgin English scholars would say, “b’long pidgin.”

So Section 199A(c)(3) only lets in what is included or allowable in computing taxable income for year at issue. Section 280E excludes potting wages as deductions.

“But nondeductible wages cannot be included in ‘qualified business income’ for purposes of section 199A(c)(1) because the statute expressly excludes them from the scope of that concept. In view of that statutory command, such wages are not capable of being designated to go correctly with (or being set apart for) qualified business income. They do not ‘fit’ ‘correctly’ under that statutory construct and, therefore, are not properly allocable to it. And if nondeductible wages are not properly allocable to qualified business income, they cannot be ‘W–2 wages’ as defined in section 199A(b)(4)(B).” 165 T. C. 5, at p. 10.

Ayla and Pat argue that they reported all wages on the 941s, and IRS is trying to put arbitrary limits thereon via the regs. No, says Judge Eminent, Congress did that.

“As we have explained, the Commissioner’s interpretation of section 199A tracks the relevant statutory provisions and gives meaning to each of them. Section 199A(c) expressly tells us how to treat amounts that are not ‘allowed in determining taxable income for the taxable year.” I.R.C. § 199A(c)(3)(A)(ii). Specifically, we must exclude them from qualified business income, and they cannot be ‘properly allocable’ to such income. Therefore, nondeductible wages likewise cannot be ‘W–2 wages’ as the statute defines that term. The Commissioner does not ‘add to the statute something which is not there,’ Pet’rs’ Op. Br. 13 (cleaned up), when he insists that the statutory provisions be followed.” 165 T. C. 5, at pp. 11-12. (Footnote omitted).

That Section 199A looks like old Section 199 DPAD doesn’t mean it’s the same. Congress knows the difference. Ayla and Patricia only get what IRS allows.

Ch J Urda, and Judges Kerrigan, Buch, Nega, Pugh, Ashford, Copeland, Jones, Greaves, Marshall, Weiler, Way, Landy, Arbeit, Guider, and Fung, are all on board with this.

But Judge Rose E. (“Cracklin'”) Jenkins isn’t.

Congress listed the businesses that didn’t qualify, and pottery isn’t there. See Section 199A(d)(1) and (2). “And Congress did not amend section 280E to disallow the section 199A deduction, leaving respondent conceding that it is available with respect to petitioners’ cannabis-related businesses.” 165 T. C. 5, at p. 15.

Anyway, Ayla and Patricia are still inhibited by Section 280E.

“I appreciate the concern that petitioners are deducting the lower amount of wage expenses allowed after application of section 280E, thereby increasing their qualified business income under section 199A(c)(1), while seeking to take into account a higher amount of wage expenses unlimited by section 280E for purposes of the cap based on ‘W–2 wages.’ However, because the higher amount of ‘W–2 wages’ is used only for purposes of the cap based on ‘W–2 wages,” it does not allow the amount of the deduction to exceed 20% of qualified business income and taxable income (as determined for purposes of section 199A), which is higher simply by virtue of the application of section 280E. Accordingly, the drug-trafficking deterrence objective of section 280E is still furthered by the resulting overall tax burden relative to gross income, as compared to a business that is not subject to section 280E. And that is accomplished without a distorted reading of section 199A. Allowing a qualified business with meaningful wage expenses a deduction of up to 20% of taxable income, however taxable income is determined, is consistent with the goals of section 199A. Accordingly, I am not swayed by respondent’s equitable, policy-based argument.” 165 T. C. 5, at pp. 18-19. (Footnotes omitted).

I report, you decide.

I’ve often commented on, and deplored, the lengths to which dodgers and protesters will go in their quest for unearned victory. But in Ivey Branch Holdings, LLC, Ivey Branch Investors, Tax Matters Partner, Docket No. 19189-19, filed 9/11/25, IRS counsel shows they can go head-to-head with the leaders in the dodge-and-protest game.

The Ivey Branches stip to go with 11 Cir’s eventual decision in J L Minerals. For the backstory of J L Minerals, see my blogpost “Blunging Farblundgeit,” 10/8/24.

So Judge Albert G. (“Scholar Al”) Lauber, with what one imagines is a sigh of relief, lets all the trial subpoenaed witnesses go free, moots out a couple motions (hi, Judge Holmes), and drops the case off two (count  ’em, two) trial calendars.

But one motion remains, and thereby hangs the cliché.

“…respondent filed a motion for partial summary judgment contending that the charitable contribution deduction should be denied in its entirety because the Ivey Branch property is allegedly encumbered by an easement, granted to an electric utility entity in 1975, that would permit erection of electric utility lines over the property.” Order, at p. 1.

Fifty (count ’em, fifty) years old.

Minor fact questions: are such lines already there? If so, do they serve a conservation purpose, e.g., powering devices that detect poachers and trespassers and fire, or nighttime cameras that detect animal and bird activity, thus protecting such a purpose? If not, will the electric utility suddenly erect such lines gratuitously and without notice to the landowner after fifty years of inaction? Is not this easement a de minimis restriction, or a contingency so remote as to be negligible?

I’m a fan of summary J, but this is ridiculous.