Jeremy Berenblatt, T. C. Memo. 2026-75, filed 8/27/26, is an unending source of blogfodder. Y’all will recollect Jeremy blew on a digital options dodge seven (count ’em, seven) years after IRS interviewed him. So far no dough for Jeremy, but his trusty attorneys (whom I’ll call the Scotts) are in there pitching, trying to supplement (or maybe complete: the rules overlap) the administrative record, and have Judge Elizabeth A. (“Tex”) Copeland take 14 (count ’em, 14) judicial notices.

Problem is Dania Beach. Jeremy and the Scotts, says Judge Tex Copeland, are firmly aground. City of Dania Beach v. FAA, 628 F.3d 581 (D.C. Cir. 2010)) is the barrier. The three-way test is “1) if the agency “deliberately or negligently excluded documents [from consideration] that may have been adverse to its decision,” (2) if background information was needed ‘to determine whether the agency considered all the relevant factors,’ or (3) if the ‘agency failed to explain administrative action so as to frustrate judicial review.’ City of Dania Beach, 628 F.3d at 590.” T. C. Memo. 2026-75, at pp. 11-12.

Jeremy wants IRS’ notes from his interview. Even if that happened years before his Form 211, maybe they can be included on the “all relevant factors” front. But that’s not a catch-all; it only includes material to explain complex technical issues. IRS was already on the trial of the dodgefloggers. And Jeremy put what he had told the IRS in his Form 211, so the Ogden Sunseteers had the whole story.

Jeremy’s own file wasn’t attached to his Form 211. Anyway, it’s not adverse to the OS decision, provide relevant technical background, nor does omission frustrate judicial review.  As for IRS e-mails that he wants, they were created after he petitioned so could never have been considered in evaluating his blow. As for deliberately or negligently excluded, they had to exist when the decision was made.

There’s a lot of argy-bargy about in camera review of grand jury testimony, T. C. Memo. 2026-75, at pp. 16-20, but I leave that to the technicians. F.R. Crim. P. § 6(e)(3)(E)(i) is well outside my wheelhouse.

As for the 14 judicial notices, they also founder on Dania Beach. ” As a threshold matter, Mr. Berenblatt does not detail how his requested adjudicative facts fit into the City of Dania Beach framework. Moreover, none of Mr. Berenblatt’s 14 RAFs are facts generally known within the jurisdiction or capable of accurate and ready determination. RAFs 1, 2, 3, 4, 7, 10, 11, 12, 13, and 14 describe the course of the prosecution of the… promoters and relate to Mr. Berenblatt only obliquely, if at all. They therefore cannot properly be considered adjudicative facts in the first instance. Moreover, to the extent that the RAFs incorporate inferences and speculation, they are not facts at all.” T. C. Memo. 2026-75, at p. 22.