After running successful La-Z-Boy stores in MI, her parents relocated to GA and started opening stores there for the trademarked cocoon. Her dad even got into the green building business, becoming an early exponent of Leadership in Energy and Environmental Design (LEED) certification. He successfully invested in a FL enterprise to get plastic waste out of streams. He even lectured on obtaining LEED certification at Western Carolina University in their construction management program. Dad and Mom sent Jessica Walters, T. C. Memo. 2022-17, filed 3/7/22, to law school, where she interned with the Carolina Mountain Land Conservancy.

But Jessica wasn’t interested in flogging furniture. So the family partnership transitioned into building/consulting environmentally-friendly homes. The flagship was Balsam Home, part of the Balsam Mountain Preserve, a low-density ecofriendly development.

Judge Wells takes up the tale.

“The development sells its landowners club memberships which include access to a golf course, tennis courts, a restaurant, hiking and mountain biking trails, horseback riding, and an educational facility that offers hikes and lessons on fly-fishing and on flora and fauna identification. In addition to private residences BMP has ten cottages,  featuring geothermal water and solar heating systems, where prospective owners may stay.” T. C. Memo. 2022-17, at p. 4.

The family partnership built Balsam Home.

True to their ecofriendly principles, “Balsam Home was constructed with various eco-friendly systems and materials. …while still under construction, Balsam Home received the Energy Star Qualified Home Certificate, which certified that the home met energy standards established by the United States Environmental Protection Agency. Balsam Home… was awarded the USGBC LEED for Homes Gold Certificate  (the highest LEED certification for homes)…. Balsam Home has (among other things) a wine cellar, a dry sauna, a putting green,  indoor and outdoor fireplaces, a dog wash, and a fully functional greenhouse.” T. C. Memo. 2022-17, at p. 4.

Just so you know, this is not a Section 42 low-income tax credit case.

The family held open houses and tours, touting their ecofriendliness and pitching their services. They lived off-site, but did use Balsam Home. They registered motor vehicles, stored wine in the wine cellar (I told you this isn’t a Section 42), used the golf course, and had DirectTV wired in.

They did engage in other deals, but none apparently got beyond the planning stage. They had started during the Black ’08. They did keep separate records for each venture the partnership was in, and did have income, but never covered the losses.

So it’s “goofy regulation” (Reg. Section 1.183-2(b)) time.

The separate records are neutral. While the family never explain their coding methods, their records are thorough. Even though interlarded with personal expenses ($18K for Atlanta Braves season tickets), it looks businesslike.

And Dad’s expertise plus Jessica’s training is enough. They consulted with experts when they built Balsam Home; Dad kept up his green training. And worked on the project personally.

“We find petitioner husband’s testimony credible. We believe that although petitioners employed a landscaping crew to assist with maintenance, they performed most of the maintenance themselves.  Additionally, petitioners’ work in furtherance of [partnership’s] business was not limited to the upkeep of Balsam Home or spending time at BMP. Petitioners engaged with potential clients, consistently advertised in the Western North Carolina Green Building Directory, and attempted to have various articles published about Balsam Home and the green building industry. Petitioner husband’s time dedicated to learning about eco-friendly building likewise shows that petitioners expended substantial time and effort in acquiring knowledge to develop the partnership’s green consulting business. We conclude that this factor weighs in favor of the partnership’s having a profit objective.” T. C. M<emo. 2022-17, at p. 12.

And the family had La-Z-Boy success in MI, transitioned successfully to GA, and Dad did serve on the Board of the FL clean-up hitters, selling out for a profit.

The Black ’08, however, is not enough to explain the continued losses of the partnership, nor is the residential real estate market speculative says Judge Wells, so IRS wins that one. I respectfully dissent as to the speculative nature of residential real estate, having been involved for 55 (count ’em, 55, and I have) years with residential real estate.

True, the family has money. But their income fluctuated over the years, and a lot of their net worth was created years before the years at issue. So that’s neutral.

Personal pleasure is a tough one. Dad hit the greens at the golf course, and that’s more fun than hitting the bricks. But the record doesn’t show one way or the other.

Bottom line is “(W)e recognize that the partnership’s efforts were not perfectly executed, but its actions overall fall in favor of a conclusion that it was seeking a profit.” T. C. Memo. 2022-17,at p. 17.

A Taishoff “Good Job” to Jessica’s trusty attorneys.

Reading Judge Pugh’s quietus to Global Asset Fund 2009, LLC, Global Asset Recovery, LLC, Tax Matters Partner, Docket No. 25108-17, filed 3/4/22, put me in mind of the late Arthur Kopit’s 1962 Drama Desk winner. This was another of the phony Distressed Asset/Distressed Debt marriages, disguised as partnerships, colloquially known as DADs, of the type made famous by the wrong Mr. Rogers.

Of course, said “partnership” needn’t be dissolved, because it never existed. “…the partner contributions of Brazilian credit card receivables to Global Asset Fund 2009, LLC, in taxable year 2009, upon which the Bad Debt Deduction was claimed, were not valid partner contributions.

“…the partners of Global Asset Fund 2009, LLC, did not join together for a business purpose in taxable year 2009 and consequently, no partnership was formed or existed in that year.” Order, at p. 2.

Wherefore, Global Asset transactions “…are disregarded under the economic substance, substance over form, and step transaction doctrines with regard to its taxable year 2009.” Order, at p. 2.

So Judge Pugh erases $18.5 million of deductions.

But there’s bad news and good news.

First, the bad news. 40% gross overvaluation chop for $18 million, and 20% underpayment for the rest.

Now the good news. “…$8,189 of Other Income reported by Global Asset Fund 2009, LLC, on its 2009 tax return is reclassified as Portfolio Income (Loss) Interest and treated as investment income included in portfolio income. As set forth above, Global Asset Fund 2009, LLC, is disregarded as a partnership for its taxable year 2009 and, consequently, its Portfolio Income (Loss) Interest of $8,189 shall be included in the gross income of its partners based upon their proportionate ownership interests in Global Asset Fund 2009, LLC, as directly and separately owned by them.” Order, at p. 2.

No arguing, Gina C. Lewis, 158 T. C. 3, filed 3/3/22, is an innocent spouse. When IRS hit her with the deficiencies, Gina sent them a letter designated as a Section 7430(g) qualified offer, conceding said deficiencies in full, but reserving the right to claim innocent spousery. IRS ignored the offer and hit Gina with a SNOD. Gina petitioned the SNOD and claimed innocent spousery in her petition, but never gave IRS Form 8857. When IRS and her loved-once Tim the intervenor stiped out the deficiencies thereafter, IRS conceded that Gina was an innocent, and moved for entry of decision, which Gina rejects as an end-run around her claim for admins and legals.

IRS concedes Gina meets the net worth cutoff, and she substantially prevailed as to amount and most significant issue.

Even though Gina loses, I give her trusty attorney a Taishoff “Good Try, First Class.” See 158 T. C. 3, at pp. 3-4 for the qualified offer letter. Nice piece of drafting.

Now Gina never submitted Form 8857 or anything else while the deficiency case was pending, either at exam or to CCISO, when IRS referred her case there. This may have been a justified gamble; “The qualified offer provision may not apply, however, where the ‘judgment [is] issued pursuant to a settlement.’ § 7430(c)(4)(E)(ii)(I).” 158 T. C. 3, at p. 6 (footnote omitted, but it says Gina rejected the offer of entry of decision to avoid the “judgment pursuant to settlement” counter-gambit.)

Judge Pugh disqualifies the offer, because it does not specify the amount offered. As Gina reserves the right to raise innocent spousery on a CDP. “… her offer flunks the requirement in section 7430(g)(1)(B) that the qualified offer ‘specif[y] the offered amount of the taxpayer’s liability.’ An offer that reserves the right to claim relief under section 6015 does not ‘specif[y] the offered amount of the taxpayer’s liability’ because the amount of liability offered depends on potential—and reserved—application of section 6015 and cannot be determined until availability of section 6015 relief is considered (or reservation of the right to claim it is withdrawn).

“Applying the regulations to petitioner’s offer illustrates the problem. Petitioner offered to concede ‘100% of the tax and 100% of the penalties’ for [years at issue], subject to a reserved right to claim relief from joint and several liability under section 6015. Respondent’s acceptance of that offer would not ‘fully resolve the taxpayer’s liability, and only that liability . . . for the type or types of tax and the taxable year or years at issue in the proceeding’—that is, petitioner’s federal income tax liabilities for [years at issue]—because her tax liabilities might be (and were) reduced to zero after consideration of her reserved right to claim relief from joint and several liability under section 6015(c). See Treas. Reg. § 301.7430-7(c)(3).” 158 T. C. 3, at pp. 9-10.

Now before my ultra-hip readers cry out as one “What about Regulation § 301.7430-7(e) (example 4), which discusses whether a taxpayer may reduce the amount the taxpayer will pay pursuant to a qualified offer after the offer is accepted by the Commissioner by applying net operating loss carryovers?”

Well, in the NOL case, the liability amount is fixed. Adjustments not at issue in the case at Bar may serve to offset payment. But Gina reserves the right to unfix the liability amount in advance, and that’s a bridge too far.

Taishoff says the bottom line is that judges love settlements. Settlements clear dockets and of course conserve scarce judicial resources (translation: “save judges work”). Anything that encourages settlements is good. Making IRS pay for settlements discourages settlements. That is bad.

Unhappily for trusty attorney, those who sail too close to the wind often end with wet underoos.

Clary Hood, founder of his eponymous grading and excavation company, is an American success story. Starting out of high school as a Cat skinner (that’s driving a Caterpillar excavating rig) in his father’s business, he went out on his own with “…only two employees and a hodgepodge of used equipment valued at no more than $60,000 before growing into a 150-person company with nearly $70 million in revenue by the end of [the second of the two years at issue]. ” Clary Hood, Inc., T. C. Memo. 2022-15, filed 3/2/22, at p. 4.

And it was no sleighride; Clary rode out two (count ’em, two) recessions, cutting his own pay to zero and his employees’ to as low as he could, walking away from Walmart when they tried to squeeze him, selling excess equipment, personally guaranteeing loans and completion bonds, and working 80-hour weeks.

And unlike some hard-driving entrepreneurs, he hired a first class team of executives who worked as hard as he did.

So when they had two (count ’em, two) great years back-to-back, and Clary was beginning to think of ““a changing of the guard”,” T. C. Memo. 2022-15, at p. 47, his executives thought Clary had been undercompensated for all the years he had kept the company going, and had their CPAs do a heavy-duty calculation for Year One (but not Year Two). And the Board of Directors (Clary and Mrs. Clary) voted Clary a very healthy bonus in each year. And Clary and Mrs. Clary never declared a dividend.

IRS claims excessive compensation, and whangs Clary with hefty deficiencies and five-and-ten understatement chops.

Judge Travis A (“Tag”) Greaves clearly appreciates Clary, the kind of man who made this country great. But rendering nondeductible disguised dividends deductible as salary and wages is a no go.

Now reasonable compensation is often in the eye of the beholder, beheld through multifactored lenses. While Clary’s attorneys try independent investor as the sole test, only one CCA bought that, and 4 Cir, whence Clary is Golsenized, never bought it.

Now for the reason for the headline first written at the head hereof, as my already-on-their-second-Grey-Goose-Gibson colleagues would say. Read from page 34 to page 39; those are Clary’s experts. Then read from page 39 to 42; that’s IRS’ expert, who allowed Clary more than IRS did in the SNOD. In a big-ticket case like this, where technical issues abound, one can’t just take an expert’s report and put it in evidence. One needs to do a thorough cross-examination in advance. While it’s easy to play Monday-morning quarterback, it sure looks like somebody missed a block or two here.

I won’t mention letting Clary testify about income tax considerations and the changing of the guard.

While I’m no pitchman for CLE programs, I suggest someone should run one on “Win Your Case by Woodshedding Your Experts.”

Worse, while his trusty CPAs did a great job providing good faith cover for Clary for the chops on the Year One deficiency, no evidence was proffered as to Year Two. However thin the rationale might be for Year Two, ya gotta try it.

As an old Army engineer, I agree the Cat skinners do a better job than the paperers.

Although his Bachelor of Science degree is in accounting, not engineering, Judge Christian N. (“Speedy”) Weiler is a great fan of “the greatest engine yet devised for the discovery of truth,” as Dean Wigmore put it.

Cross-examination, done properly, can unearth, unhorse, undo, and unravel, if anything can.

I’ve said it before, but it deserves repeating: everybody’s testimony looks the same on paper; nobody’s testimony looks the same on the stand.

So Judge Speedy Weiler denies summary J to Green Valley Investors, LLC, Bobby A. Branch, Tax Matters Partner, et. al, Docket No. 17379-19, filed 3/2/22. The Greeners want partial summary J that their appraisers are Section 170 qualified, and that their appraisals clear the Reg.  §1.170A-13(c)(3) bar.

IRS says no, because they want to depose said appraisers. My readers will doubtless recall said activist appraisers tried to intervene to prevent any such deposition, and got sent off. If you don’t, see my blogpost “No Likely End,” 2/11/22. In the same order, Judge Speedy Weiler sent IRS off,  when they sought to depose, because the Greeners’ good faith reliance on whatever the appraisers produced is a question for Bobby Branch, TMP, not the appraisers.

Except maybe Judge Speedy Weiler is starting to backtrack. Cross-examination needn’t happen only at trial.

“When considering the elements of a qualified appraisal and appraisers, it appears that petitioners may have satisfied these legal requirements. However, viewing the facts and inferences in a light most favorable to respondent, we cannot conclude such as a matter of law, since there remains material facts in dispute between the parties. Respondent sought to compel the depositions of Mr. V, Mr. W, and Mr. M—which petitioners objected to—and this Court denied, without prejudice, by order served on February 11, 2022. This Court acknowledges that it would likely benefit from this cross examination testimony from these witnesses prior to ruling on the issues before the Court. Accordingly, we are compelled to deny petitioners’ motions for partial summary judgment at this time.” Order, at p. 3. (Names omitted).

So does IRS move again to depose? Has IRS cleared the Rule 74(c)(1)(B) “extraordinary” bar? If IRS moves again and wins, is this going to be a mini-trial?

To quote the youtube Tennessee (ex-Niagara Falls) gearjammer, “Rev up yer engines!”

Edited to add, 3/2/22: I couldn’t agree with Judge Speedy Weiler more: any trier of fact would definitely benefit from cross-examination of every witness, fact or expert, before ruling on the issues before that trier. But where is this cross-examination to take place? In a deposition? Triers of fact don’t attend depositions. And again, everybody’s testimony looks the same on paper. Unless there’s a trial, that paper is all a trier of fact will see. So all the deposition does is give the adversary impeachment material. I fail to see how that helps the trier of fact where the expert witness must proffer his/her/their report, which is their direct testimony per Rule 143, well in advance of trial. The adversary has plenty of time to develop their cross-examination. And nobody’s testimony is the same on the stand, which is why Rule 74(c)(1)(B) there. To make sure the trier of fact can see and hear the witness on the stand.

ChJE (Chief Judge Elect) Kathleen (watch this space) Kerrigan denies both ACRIS depreciation (Section 168(a)) and bonus depreciation (Section 168(k)) to John D. Lord and Belinda Lord, T. C. Memo. 2022-14, filed 3/1/22. Congress remains obdurate: marijuana is a controlled substance, wherefore “(I)n the absence of new legislation from Congress, the legislative intent of section 280E remains unchanged; shifts in public sentiment and legalization of marijuana do not change the purpose or applicability of section 280E.” T. C. Memo. 2022-14, at p. 8.

John was a member of an LLC and shareholder in a Sub S, both of which were CO med potters. Both took ACRIS and bonus for year at issue. Neither LLC nor Sub S kept books per GAAP. Though not required to keep books per GAAP, even under the Section 471 “clearly reflect income” standard, John has no evidence to show that the method used conforms to the best practices in the medicinal herbage trade or business.

And Section 263A(2)(a) bars deducting any cost related to a 280E prohibited trade or business.

Of course, John’s Constitutional arguments are nonstarters.

So John is stuck with basic Section 471, as refined by IRS. But IRS has given him a thwacking great deficiency and chops at no extra charge.

My sources tell me that medical pot is legal in 38 (count ’em, 38) States and Our Nation’s Capital. If the Senators and Representatives of all those States wished to change the present law, they could. But this is a nonpolitical blog.

I just blogged today the case of Mike S. Wright (see my blogpost “No Contest,” 2/28/22), where the AO’s erroneous conclusion that Mike had a chance to contest made no difference. But now Scott Nicholas Shaddix, T. C. Memo. 2022-11, filed 2/28/22, has the same bœuf as his OIC was denied, but he had additional substantiation and never had an exam.

Two of his four (count ’em, four) years-at-issue get tossed, as IRS never gave him a SNOD or NOD. But notwithstanding that, IRS’ own records show Scott never got a SNOD or participated in any exam, despite what two SOs say.

And the bounce of the OIC sets up the right of Tax Court review, even if the year at issue is out.

The OS (offer specialist) who looked at Scott’s OIC was convinced his RCP was as Scott stated. However, the OS wanted Scott to sign Form 2261-C, Collateral Agreement—Waiver of Net Operating Losses, Capital Losses, and Unused Investment Credits, thereby demanding Scott waive a bunch NOLs (hi, Judge Holmes), which would trigger a bunch chops which he might otherwise offset by whatever NOLs were left after the amount of tax compromised plus the payment Scott was making on the OIC.

Scott says no.

Judge Albert G. (“Scholar Al”) Lauber says Scott should have had the chance to dispute liability and offer additional substantiation. So he remands Scott.

“If Appeals concludes on remand that petitioner is not entitled to dispute his underlying liabilities for [years at issue], it shall explain the factual and legal basis for that conclusion. If Appeals determines that petitioner is entitled to dispute these liabilities, it shall offer him the opportunity to submit relevant evidence and then resolve his underlying liability challenge. We do not reach at this time the question whether Appeals abused its discretion in declining to accept petitioner’s OIC. In addition to presenting, at the supplemental hearing, appropriate evidence concerning his underlying tax liabilities, petitioner is free to resume negotiations concerning the terms that should properly be included in such an offer.” T. C. Memo. 2022-11, at p. 9.

At least for now, that is, as Corning Place Ohio, LLC, Corning Place Ohio Investment, LLC, Tax Matters Partner, T. C. Memo. 2022-12, filed 2/28/22 survives summary J. The Cornings have the Garfield Building in Cleveland, built on Rockefeller land for the late Pres. Garfield’s sons. Judge Albert G (“Scholar Al”) Lauber extols the artistic-historical merits of this desirable property, which the Cornings are converting from office to condos, without touching anything anybody can see from the street.

The Cornings paid $6 million for this treasure, but took a historic exterior write-off of $22 million. They left off their appraiser’s exhibit with his c.v., but put that in on exam when told it was missing, and ponied up the $500 filing fee called for by Section 170(f)(13) as well, both of which IRS accepted. IRS graciously responded with a FPAA bouncing the entire deduction.

IRS wants summary J on perpetuity, the defective appraisal, and the late $500 (seriously).

Of course it’s all about the deed.

“Upon initial inspection the easement deed at issue seems to track the regulation precisely. It provides that ‘Grantee’s percentage interest shall be determined as the fair market value of this Easement as of the Recording Date divided by the fair market value of the Property as a whole as of the Recording Date.’ But respondent views as problematic the sentence that appears two lines later: ‘The values upon the Recording Date of this Deed shall be those values used to calculate the deduction for [F]ederal income tax purposes allowable by reason of this grant pursuant to Section 170(h) of the Code.’” 2022 T. C. Memo. 12, at p. 6.

But IRS says if the deduction is invalid, the easement FMV is zero, so the 501(c)(3) protector gets zilch.

But that assumes IRS is the one who determines the values, whereas the more plausible reading is that the Cornings decide, as the “Recording Date” occurs long before IRS is on the scene.

IRS claims the omitted c.v., plus the fact that the photos submitted didn’t show the roof, invalidates the appraisal. Judge Scholar Al says substantial compliance plus good faith could cure this, so save it for the trial.

Ditto the late $500.

“The statute specifies that such filing fees ‘shall be used for the enforcement of the provisions of subsection (h)’ dealing with qualified conservation contributions. § 170(f)(13)(C). Respondent contends that the deduction must be denied in its entirety because Corning Place omitted a $500 filing fee when filing its original return….

“However, Corning Place did submit the $500 filing fee as soon as this omission was brought to its attention, and the IRS accepted the filing fee. Surmising that the fee has now been dedicated to the Commissioner’s section 170(h) enforcement program, petitioner contends that it substantially complied with the statutory mandate because the statute’s purpose has been accomplished. Neither this Court nor any other court has yet considered whether section 170(f)(13) can be satisfied by substantial compliance.” T. C. Memo. 2022-12, at pp. 9-10.

And the Cornings say they filed an amended return, to which they attached the $500. But that return never made it into the record.

So save it for the trial.

or

The Great Joust

One of my nearest and dearest, and her spouse, are great fans of the local Renaissance Fair. Unfortunately, the late Marion Levine was not the owner of the one they patronize, although she did own two (count ’em, two) others. I’ll let Judge Mark V Holmes explain.

“These are a bit like state fairs, if the state were a small principality in fifteenth-century Europe populated entirely by modern people who enjoy costumed role-playing and adding extra ‘”e”s’ to words like ‘old’ and ‘fair.’” 158 T. C. 2, at p. 5.

But the late Marion owned a lot more, after she sold the family supermarket chain, and started buying real estate, trailer parks, and stocks. The late Marion also wanted to provide for her two children, who were often at odds, and her grandkids. Fortunately, she had her trusty CPA and general manager Larson, who, with the two children aforesaid, had powers of attorney. If there was any disagreement, majority ruled. Better still, she had her trusty attorney Shane Swanson, Esq., who gets a Taishoff “Good Job, First Class” as his split-dollar life insurance arrangement does a grand slalom around Sections 2036, 2037, and 2703 (with much “somber reasoning and copious citation of precedent”).

Of course, for this to work, there needs to be a client with a heavy-duty estate, with enough cash to buy a hefty insurance policy or two, children and grandkids the client wants to benefit, which children have net worths large enough, and healths good enough, to let an insurer insure their lives for heavy-duty dollars. And same cannot cramp client’s lifestyle; Marion has GRAT and QPRT and cash, so she’s in.

The case is Estate of Marion Levine, Deceased, Robert L. Larson, Personal Representative, 158 T. C. 2, filed 2/28/22.

Shane creates two trusts, a revocable for Marion and an irrevocable for children but run by Larson, organized under the beneficent SD statutes, that allow investment advisors to overrule administrators, while remaining fiduciaries. Revocable lends irrevocable $6.5 million borrowed using Marion’s assets as collateral. Irrevocable buys last-to-die life insurance policies on daughter and her spouse, because son was uninsurable, and gives revocable a note for the $6.5, payable at the greater of (i) total premiums paid or (ii) either (a) the current cash-surrender values of the policies upon the death of the last surviving insured or (b) or the cash-surrender values of the policies on the date that they were terminated, if they were terminated before both insureds died. 158 T. C. 2, at p. 17.

Irrevocable owns the policies. Revocable owns only the receivable.

Of course there’s a joust over the FMV of the receivable, because that’s in the late Marion’s estate, but that’s stiped out at $2.3 million.

IRS claims all of the $6.5 is in, because Marion and Larson could amend the deal and she’d get the policies. Except any two parties could mutually terminate any deal, and the power or right to revoke a deal doesn’t extend to power of persuasion. And Larson is fiduciary both for the children and the grand kids. If he colluded with Marion to revoke, the grandkids get nothing.

Now gift tax is another story, but we’re not going there here.

IRS loses. The stiped $2.3 is all that is subject to tax.

T&E lawyers, read the whole opinion. Trusty Shane Swanson did a real good job.

Michael S. Wright, Docket No. 7909-19L, filed 2/28/22 (the Last of the Palindromes), did in fact contest his underlying liability. The SO at the CDP concluded he hadn’t, and gave him a NOD, sustaining the NFTL.

Mike took an IRA draw, of which half went to loved-once in the ongoing CA divorce proceedings. Mike said “…his assets had been frozen by the state court overseeing the divorce proceeding, and that he had a hearing scheduled to ‘work toward settlement and division of assets.” Order, at p. 2. Mike also said his ex had gotten half, so she should be liable for half. And they were CA residents, a community property state.

Despite the IRC’s solicitude for community proprietors, Section 408(g) puts paid to that argument. The distributee of the IRA draw is on the hook for the whole boat, per Section 408(d)(1). Of course, Mike can fight it out with loved-once in CA court.

That said, the SO’s erroneous conclusion that Mike couldn’t contest liability at the CDP is not a bar to summary J for IRS. Remand won’t work here, because the only arguments Mike raised to avoid liability for the whole IRA distribution were losers.

Now before my ultra-sophisticated readers yell “QDRO!”, note Mike never raised Section 408(d)(6). Order, at p. 7. Judge Emin (“Eminent”) Toro had this one; I wonder what That Obliging Jurist, Judge David Gustafson would have done.

Would Judge Gustafson have sent this back to Appeals with a nudge nudge, wink wink, to Mike to try for a QDRO?

I don’t know, and it’s futile to speculate. But Taishoff says Mike might (could be) (maybe so) want to consider a Rule 162 reconsideration.