Pro ses Gaetan Pelletier & Nancy J. Pelletier, Docket No. 3960-24, filed 6/29/26, employ that old coordinated-arms doctrine, firing off four (count ’em, four) motions for partial summary J, one of which Judge Benjamin A. (“Trey”) Guider, III, recharacterizes as a motion to shift BoP, and one to require discovery responses.

While all get shot down, they all point Gaetan & Nancy to where their problems of proof lie, and what weight Judge Trey Guider is likely to accord each. 

Start with the basic rookie error, making formal discovery demands and then sending a Branerton letter. The attempted cure doesn’t work. However, “parties are still actively in the process of or will be negotiating a stipulation of facts,” Order, at p. 7, so maybe so might could be the formal demand woke up IRS’ counsel and moved things along faster than the three (count ’em, three) months it took IRS to respond to Motion One (Order, at p. 3).

Since deficiencies are tried de novo, the old mantra that what happened at Exam doesn’t count sinks Gaetan’s & Nancy’s limited argument that IRS hadn’t established an evidentiary basis for denying their claimed NOLs. BoP is still with petitioners; SNDs are presumed correct, the only exception being unreported income (not in play here\). Whatever Gaetan & Nancy claim IRS ignored they can still bring out at trial, but Judge Trey Guider finds what they submitted to support their motion doesn’t cut it.

That change in method of depreciation is a Section 481 change in method of accounting is well-established. Keeping the old method of accounting while changing method of depreciation doesn’t get around Reg. Section 1.446-1(e)(2)(ii)(d)(2)(a). That Gaetan & Nancy didn’t elect to change their method of accounting is irrelevant.

And if IRS stands mute on its basis for change in method and denial of NOLs, mox nix. “Respondent’s lack of explanation relating to the disallowance of the NOLs and his silence as to the amended returns petitioners submitted does not preclude him from litigating those issues. For that reason, we will deny petitioners’ fourth Motion for Partial Summary (sic)….” Order, at p. 6.

Having gotten a look at what Judge Trey Guider thinks of the case and where he thinks their problems are and how great, Gaetan & Nancy can work out strategy for trial or settlement.

Taishoff says these motions are time well spent.