Whether said deficient fruit “don’t spoil the whole bunch, girl,” as the Osmonds remarked 55 (count ’em, 55) years ago, one material fact disputed under oath by one with personal knowledge spoil (I beg your pardon, spoils) the whole summary J motion.

So says Judge Kashi (“My or the High”) Way to IRS’ counsel in Jeffrey Godwin, Docket No. 10699-24L, filed 4/24/26.

Tax Court Judges are always ding, dinging in our ears that “the nonmovant may not rest on the allegations or denials in that party’s pleading.” Order, at p. 2. (Citations omitted).

Nevertheless, Jeff’s trusty attorney steps up, in the teeth of the ABA Model Rule 3.7 ban on lawyer-as-witness, declaring he did show for the meeting at Appeals and that Jeff did provide the financial information requested by the SO. Remember, the specific evidence offered to defeat summary J may not necessarily be admissible on the trial; summary J is issue-finding, not issue-deciding.

Taishoff says my money is on ABA Model Rule 3.7(a)(3) and Jeff’s trusty attorney.

Judge Way doesn’t bother with that question yet. “A single nonconclusory affidavit, based on personal knowledge and addressing a material issue, is sufficient to defeat summary judgment.” Order, at p. 2. (Citation omitted).

Anyway, since the parties filed status reports claiming they’re working on a settlement, Judge Way denies summary J without prejudice.