Rather than showing “a substantial ground for difference of opinion” on “a controlling question of law,” Judge Jeffrey S. (“Schwer”) Arbeit finds that Blair A. Battersby, et al., Docket No. 1356-23, filed 4/16/26, IRS’ counsel, and he all agree on what Section 1377(a)(2) says and means. The Battersbys only are arguing about how the statute applies to the stock swaps more particularly bounded and described in my blogpost “Afecionados,” 4/2/26.

In short, whether there was a redemption, or a sale or gift, as between the Battersbys and their grantor(s) or grantor’s predecessor-in-interest, is not a matter that fits either 28 USC 1292(b) or 26 USC 7482(a)(2)(A). The CCA would have to scan the record, and they might as well do that after trial, as the caselaw says.

“As is clear from the Order [Doc. 116] and the parties’ own filings, the Court and the parties share the same understanding of section 1377(a)(2). There is simply no dispute of law, let alone the required ‘controlling question of law.’ See § 7482(a)(2)(A); Rule 193. We did not reject petitioners’ legal analysis; rather petitioners failed to raise any genuine dispute of material fact. Our Order is unambiguous and does not include a controlling question of law sufficient to satisfy the first requirement in section 7482(a)(2)(A) and Rule 193.” Order, at p. 3.

There’s plenty of somber reasoning and copious citation of precedent for those contemplating interlocutory Tax Court appeals. Download it for your memos of law files.