The Genius Baristas have truly assumed the role of Censor to the United States Tax Court. Today we have examples of Stealth and Unstealth, with no apparent logical basis.

Let’s begin with Unstealth. Y’all will recollect Robert Marcel Aschenbrenner & Rediat Badeg Aschenbrenner v. Commissioner, Docket No. 2676-20S, filed 4/28/21.This is Rob’s & Red’s second try, their first having been on 4/22/21. See my blogpost “The Stealth Transcript,” 4/22/21.

Well, now it can be told. And I wonder why this was Stealthed in the first place.

The story is the unhappily usual Advance Premium Tax Credit that disappears when Rob got a job and broke the 400% poverty barrier. And Rob & Red never reconciled increased income with APTC.

Ex-Ch J L Paige Marvel is appropriately sympathetic, but the law remains. “We are sympathetic to the hardship that this imposes on petitioners. They are neither the first nor, we suspect, the last taxpayers to find themselves unexpectedly ensnared by the APTC. Unfortunately, we are not a court of equity, and we cannot ignore the law to achieve a fair or equitable end. The law in this case is clear; petitioners received an APTC to which they ultimately were not entitled. Consequently, we are bound to sustain the proposed increase in tax determined in the notice of deficiency….” Transcript, at pp. 7-8.

Now we go from Never-Stealthed to Stealth.

Blowers Lawrence W. Doyle & John F. Moynihan featured in my blogpost “Judge on a Tear – Part Deux,” 10/8/20. I reported a T. C. Memo., out there for all the world to see. But of course this was pre-DAWSON, when the Genius Baristas went on a tear to end all tears. One of the blower duo got me on the iPhone this morning. Apparently there was an order in their case on the same day as Rob & Red submerged in Dawson’s Creek.

When he asked me why I hadn’t blogged it, I said I didn’t recall seeing it, but as I was then in the middle of Broadway I couldn’t verify whether it had appeared on the new, improved (yeah, most affirmative), jim-handy Tax Court website. He told me it hadn’t, and when he called the Old Vic (that’s The Glasshouse designed by Old Vic Lundy), he was told he could order a copy from transcripts and copies. At that point, I think I raised my voice. But the conversation terminated cordially.

When I got back to my computer, I checked on the docket search link. The entire case has been obliterated, including but without in any way limiting the generality of the foregoing, the formerly published T. C. Memo. Needless to say, the complete text of said T. C. Memo. can be found on a number of free case services in a one-minute Google search.

First of all, the gentleman is a party. Copies are for sale to non-parties, according to the new, improved, whatever Tax Court website.

Second, why are the Genius Baristas pulling a George Orwell 1984, and hiding what was formerly public? Or trying to charge us journos when we ask for documents to be posted on the website that are required by law to be posted on the website?

Let’s stop with the Stealth, chaps, and let it all be known.

We are all familiar with Form 8275, Disclosure Statement, and its sibling, Form 8275R, collectively known as the “Please Audit Me” forms. Today, Judge Patrick J. (“Scholar Pat”) Urda encounters the “paragraph IV certification,” also known as Please Sue Me.

Per the Waxman-Hatch Act, Pub. L. No. 98-417, 98 Stat. 1585 (1984), which intended to speed up generic drug approvals, manufacturers of generics could get fast-track pre-approvals from FDA if they certified the generics were equal to the brand-names, and the generic crowd could get exclusive marketing rights. But they also had to certify that the brand-name patents were expired or invalid, and let the patentees know.

Mylan Inc. and Subsidiaries, 156 T. C. 10, filed 4/27/21, ran up some hefty legal bills during the years at issue, between preparing notices to patentees that would satisfy FDA and fighting off the patentees before FDA final approval; like about $123 million in legal fees.

Mylan expensed the lot. IRS, surprise, surprise, wants the whole deal capitalized. IRS claims this is part of the cost of producing and marketing the generics, except for maybe $1.7 million for defending drugs already fully approved. And Judge Scholar Pat goes through the entire process in granular detail, having listened to the various experts presented by both sides.

The issue is whether the expenditure is a one-year consumable (expense), or a gift that keeps on giving through the years (capital). The Section 263 regulations set out the rules for “… certain ‘created intangibles’, including ‘rights obtained from a governmental agency’, contract termination fees, and amounts paid to another to defend or perfect title to intangible property. With respect to rights obtained from a governmental agency, section 1.263(a)-4(d)(5)(I), Income Tax Regs., specifies: ‘A taxpayer must capitalize amounts paid to a governmental agency to obtain, renew, renegotiate, or upgrade its rights under a trademark, trade name, copyright, license, permit, franchise, or other similar right granted by that governmental agency.’ Whether an amount is paid to create an intangible under paragraph (d) is determined on the basis of ‘all of the facts and circumstances, disregarding distinctions between the labels used in this paragraph (d) to describe the intangible and the labels used by the taxpayer and other parties to the transaction.’ Id.subpara. (1).” 156 T. C. 10, at pp. 22-23. (Footnotes omitted).

And the Reg Section takes in amounts paid to another party if that party challenges the claim to the intangible.

Expenses for acquiring, creating or enhancing the intangible must be capitalized.

 But the preamble to the Regs states that expenses of defending against infringement and collecting damages from infringement are deductible.

Expenses of litigating infringement are materially different from expenses of acquiring, creating or enhancing that which was infringed. Litigating infringement seeks getting the gain that inures to the owner of the intangible. And defense of one’s intangible is protecting said gain. Both are deductible.

So when does Mylan get the rights from the governmental agency? The convoluted FDA approval is only effective, that is, only allows the genericist to sell, after they have drafted, gotten approval of, and sent out the paragraph IV “sue-me” letter.

Mylan claims the sue-me is part of litigation, but Judge Scholar Pat says it’s part of getting the effective approval.

” Consequently, the legal expenses Mylan incurred to prepare, assemble, and transmit such notice letters constitute amounts incurred ‘investigating or otherwise pursuing’ the transaction of creating [the FDA effective approval]… and must be capitalized….” 156 T. C. 10, at p. 32. It’s really part of the application process.

But once the torpedoes have been launched, it’s another story. The expenses and outcomes of the various litigations brought by the patentees are defending Mylan’s right to sell the generics.

“The outcome of a [patent] suit has no bearing on the FDA’s safety and bioequivalence review. The FDA continues its review process during the pendency of the patent infringement suit and may issue a tentative or final approval before the suit is resolved. The FDA does not analyze patent issues as part of its review, and neither the statute nor regulations suggest that patent issues might block approval of an [application]. And winning a patent litigation suit does not ensure that the generic drug manufacturer will receive approval, as the FDA can disapprove [an application] for not meeting safety and bioequivalence standards.” 156 T. C. 10, at pp. 33-34.

The aim of the statute was to prevent patentees from treating any experimentation with their patented drug pre-expiry as an infringement.   

Once the experimenter goes forward, then the patentee can sue, but it’s a straight infringement suit. IRS claims that the suits are a prerequisite to approval. Except effective approvals can issue without a final judgment in an infringement case, and the brand name manufacturer isn’t obliged to sue.

 And the familiar origin of the claim test shows the origin of the claimed litigation expenses is a patent infringement case, not obtaining FDA approval. It’s to obtain profits, not protect title.

So the legal fees for preparing the sue-me letters are not currently deductible.

I don’t know if Judge James S (“Big Jim”) Halpern is a lover of classical music. He may never have heard Johannes Brahms’ punning description of Johan Sebastian Bach’s output: “Das ist ein Bach? Es ist ein ganzes Meer!”

I guess I should translate, and explain. “That’s a brook? That’s an entire ocean.” The word “Bach” in German means “brook.”

Today Judge Big Jim has a mere order in 901 South Broadway Limited Partnership, Standard Development, LLC, Tax Matters Partner, Docket No. 14179-17, filed 4/27/21. The order recharacterizes an attempted response to a motion conjoined with a motion for summary J (multiple motions conjoined are a Tax Court no-no, unlike every other Court I know of), and denies the 901s partial summary J. Should be a one, or maybe two, pager.

Not when the 901s mount yet another assault on dear old Reg. Section 1.170A-14(g)(6), when perpetuity is in play and “a joy forever” is the name of the tune. Judge Big Jim is good for 31 (count ’em, 31) pages. It’s a ganzes Meer.

This should be a T. C. Memo., Judge.

Once again, the mortgagee might glom the proceeds if the façade easement is judicially extinguished. And before you say “Hey, 1st Cir put paid to that one” and direct Judge Big Jim to Kaufman v. Shulman, 687 F.3d 21 (1st Cir., 2012), the 901s are Golsenized to 9 Cir., and Judge Big Jim is ahead of you.  See order, at pp. 5-6.

Oakbrook gets a heavy duty workout, as do the Palmolives. I’ve blogged both so often that I’ll spare you the cites to my blogposts; I’m sure Google has them all.

The 901s trudge extensively through the deed language and CA law. CA law supposedly states that good faith and fair dealing rule when mortgagees have discretion to glom insurance or condemnation proceeds. But since the mortgage never got into the record, Judge Big Jim can make an adverse inference that mortgagee has no discretion and therefore can just grab. Anyway, when there’s a casualty loss, insurance proceeds might be used to repair and restore; but when eminent domain means total taking, neither the owner nor the 501(c)(3) defender has anything to repair or restore.

I leave it to my colleague Peter Reilly, CPA, to dissect, slice and dice Judge Big Jim’s prose. Judge Big Jim has written IRS’ brief for them to use in the Oakbrook appeal. And every other perpetuity appeal, be it conservation or façade.

Judge Big Jim’s “somber reasoning and copious citation of precedent” notwithstanding, my money is still on so-remote-as-to-be-negligible. No cash-strapped municipality is going to raise taxes or incur bonded indebtedness to acquire a landmarked building, whose façade cannot be altered without starting the whole preservationist brouhaha. Cheaper just to grab a half-empty, newly-built, underwater, glass-and-steel office building, whose owners would be ecstatic to get anything for it, and whose tenants would love to bail on their pre-COVID leases. And that will be so even after the pandemic fades away. Teletubby is the new normal.

Judge Holmes got it right in his Oakbrook dissent.

Edited to add, 4/28/21: Problem for all the appellants is that they didn’t raise so-remote-as-to-be-negligible below, thus leaving their best argument in the locker room.

By Judge Mark V. Holmes

Our story starts with a pleasant man, talented cowboy, and skilled horsethief Dutch Henry (and skilled horsethieves ran in my family; just ask the Girl of My Dreams). Dutch Henry turned a chuckwagon cook onto a MT creekside where he would find “plenty wood.” And that was the start of Plentywood Drug, Inc., at. al., 2021 T. C. Memo. 45, filed 4/26/21.*

It’s a true Western. Plentywood Drug is a true frontier pharmacy, as that term is defined in the much-controverted Affordable Care Act. It serves a 7200 sq. mi. area, population density 2/sq. mi. Judge Holmes reminds us that The Wannabe State has 11,500/sq. mi. Plentywood Drug, Inc., is owned by two families; Plentywood Drug, Inc., rents its premises from said families.

IRS claims the families overpay themselves rent, deductible from store taxes, rather than properly paying themselves double-taxed dividends. IRS doesn’t raise the issue of salaries (FICA/FUTA/ITW), so I won’t either.

Appraisals and expert testimony are hard to come by.

“The parties in these cases quickly realized that finding comparable properties in a town of 1,700 people in frontier Montana and then using them to come up with a fair market rent would be difficult. One problem right out of the chute is that Montana is a nondisclosure state. This means that real-estate data such as sales prices that appraisers can typically find in other states is legally confidential and simply not available. This issue is magnified in a town the size of Plentywood, which already has a limited number of even potentially comparable buildings. We heard entirely credible testimony that Montanans–perhaps especially Montanans in small communities–don’t commonly share details of their financial lives very readily with strangers. The Commissioner’s expert was particularly credible in his statement that when he tried to find information in Plentywood he did not identify himself as an IRS agent.” 2021 T. C. Memo. 45, at p. 9.

The nearest larger town was in the ND oil belt, with prices to match. After fighting over the Plentywoods’ appraiser’s failure to use USPAP (Uniform Standards of Professional Appraisal Practice), which Judge Holmes says goes to weight and not admissibility, and much argy-bargy over IRS’ expert’s power to add or detract based on differences between comparables that aren’t comparable (government-subsidized housing projects are not comparable to the only drugstore in 7,200 sq. mi.), Judge Holmes does a classic mix-and-match.

The Plentywoods’ rent number is OK. IRS misses the Boss Hoss on the families, but Plentywood Drug, Inc., is a corporation, hence Boss Hoss not necessary. And Plentywood Drug, Inc.,’s number is so OK that it misses the five-and-ten understatement chop.

Best of all, Judge Holmes waits until page 25 to make sure I’ve read his every golden word.  “That also leaves Plentywood Drug to argue its way out of a penalty on the merits, which it can do in a couple ways.” 2021 T. C. Memo. 45, at p. 25.

*Plentywood Drug T C Memo 2021-45 4 26 21

Steely Spirit, Inc., Docket No. 4797-20, filed 4/26/21, has failed to file Form 6, the Ownership Disclosure Statement. This news should shock no one with even a tangential connection to US Tax Court practice.

I’ve said it before, often enough. Upwards of 90% of the corporations petitioning US Tax Court don’t fill out the form at all, or get it wrong (usually leaving it blank). It makes you wonder about the decline of American business acumen, once the wonder of the world. Why is it that so many of its driving forces are incapable of checking their stock ledgers, writing the word “NONE” in two (count ’em, two) different spaces on a one-page form, and signing it. Or, if its executive officers are incapable thereof, why they don’t ask for help.

Judge Gale explains why the form is necessary. Judges do have investments. “In the absence of information concerning whether petitioner is owned by a publicly traded entity, the undersigned is unable to ascertain whether he is obligated to recuse from this case. See Canon 3C(1)(c) and Canon 3C(3)(c) of the Code of Conduct for United States Judges (Mar. 12, 2019).” Order, at p. 2, footnote 2. These are the financial stake in the outcome rules, triggers for 28USC§455 recusal. I talked about this just last Friday; see my blogpost “It’s Too Late, Baby, Now It’s Too Late – Part Deux,” 4/23/21.

The Steely Spirits were mum twice before, when Judge Gale told them to file. Showing almost fatherly forbearance, Judge Gale so orders the Steely Spirits a third time. Now he’d told them the last time he could toss them for nonprosecution. But there’s one last catch before the Steely Spirits join their much better described spirit forbears: “We are such stuff as dreams are made on.”

“In view of the fact that petitioner has continued to disregard the Orders of this Court on a matter that affects the orderly disposition of this case, the Court is prepared, on its own motion, to dismiss this case for failure to properly prosecute. In that event, in view of the fact that the case involves review of a determination of unreported income, respondent may bear an initial burden to make a ‘minimal evidentiary showing’ supporting a link between petitioner and an income-producing activity. Accordingly, before dismissing this case for failure to properly prosecute, we believe it is appropriate to afford respondent an opportunity to make any proffer he wishes to make to satisfy any initial evidentiary burdens he may bear with respect to the unreported income determinations in the notice of deficiency.” Order, at p. 2. (Footnotes omitted).

I gave you the first of the omitted footnotes hereinabove. The second says that since the Steely Spirits are a corporation (wherefore incorporeal), IRS need not produce any Boss Hossery. See my blogpost “Howdy, Partner – Part Deux,” 5/7/18.

I didn’t blog Wiley M. & Sharon Elick, Docket No. 23767-10, filed 4/23/21, when then-Judge Diane Kroupa issued 2013 T. C. Memo. 139, filed 6/3/13. I got hung up with then-STJ Lewis (“Spell It Like It Is”) Carluzzo’s exegesis of 4,500-word (count ’em, 4500 words) of the Section 469 passive activity story. See my blogpost “Incomprehensible?” 6/4/13. Wiley (that’s Doc Wiley, the pediatric dentist) and his Section 162 problems were run of the mine stuff, and 9 Cir. agreed, affirming in 2016.

Well, Doc Wiley is back, and Judge Emin (“Eminent”) Toro has him. Turns out Wiley “recently” discovered Judge Kroupa, who tried his case, had been indicted while his appeal to 9 Cir was pending. Order, at p. 8. Of course, my readers know Kroupa pled to conspiracy to defraud the USA in October, 2016, and was sentenced in June, 2017, to 34 months hard.

So Wiley wants a vacation, out of time. Given Rule 162 speaks of 30 days after decision, and Section 7481 speaks of denial of cert by the Supremes, Wiley is definitely out of time. And although Tax Court may not have jurisdiction, Judge Eminent will consider the threshold issue: Is Wiley too late, jurisdiction or no jurisdiction?

Wiley invokes FRCP 60(b)(6), saying 28 USC§455 required Judge Kroupa to recuse herself. Maybe so, says Judge Eminent, but you have to give me a good excuse why it took you this long to raise the issue.

“The Elicks filed their motion for leave more than three and a half years after Judge Kroupa’s indictment, more than three years after her guilty plea, and nearly two and a half years after her sentencing. The motion was also filed more than three and a half years after the decision in the Elicks’ case became final. The Elicks’ only justification for this delay is that no one notified them of the developments with respect to Judge Kroupa. Notably, they avoid specifying the exact date they learned of Judge Kroupa’s indictment, other than saying it was ‘recently.’” Order, at p. 8.

If you want to write a law review article about FRCP 60(b)(6), you can crib Judge Eminent’s “somber reasoning and copious citation of precedent.”

Bottom line- Wiley has got neither a good excuse for this delay, nor any statement of what Kroupa’s tax problems had to do with the decision in his case.

And a Taishoff “Oh, Please, First Class, with Brass Accoutrements” to Wiley’s attorney, whom I’ll call JJ.

That’s the going rate in Judge Buch’s digital courtroom. Brent Jackson, Docket No. 2429-20, filed 4/23/21, is on the receiving end of a $10K Section 6673 frivolity chop, but Brent’s been on the frivol for thirty (count ’em, thirty) years.

“According to Mr. Jackson, he has raised protest arguments before this Court approximately twenty times since 1983. In 1991, we imposed a sanction of $5,000 on a Brent Jackson to deter him from pursuing frivolous arguments in future cases. Jackson v. Commissioner, T.C. Memo. 1991-498 (1991), aff’d, 990 F.2d 1258 (9th Cir. 1993). The Brent Jackson in that case made the same types of arguments perpetuated by Mr. Jackson in this case, and when given the opportunity, Mr. Jackson did not deny that he was the petitioner in the 1991 case. In 2018, we again cautioned Mr. Jackson that if he continued to raise frivolous or groundless arguments, or he instituted or maintained a case primarily for delay, he may be subject to penalties under section 6673 up to the amount of $25,000. See Order of Dismissal and Decision, Jackson v. Commissioner, No. 9099-17 (Jan. 29, 2018), aff’d, No. 18-71248 (9th Cir. Mar. 10, 2020). In ordering a response to the Commissioner’s motion in this case, we once again cautioned Mr. Jackson against perpetuating frivolous arguments. He did not heed these warnings. His filings are filled with protester arguments. And when given the opportunity to argue in opposition to the motion to dismiss, he merely perpetuated the argument that there is no law that requires the filing of a return or payment of taxes, an argument repeatedly rejected by the Courts.” Order, at p. 2. (Citation omitted).

I never blogged Brent before now. He didn’t even come up to rounder class, but he’s on my radar now, and I’m sure he’ll be back with a CDP when IRS tries to grab the $1500 in tax, chops and add-ons that Brent owes.

And the $10K Judge Buch awards IRS for the thirty years’ worth of Brent’ frivolities.

So, Brent, thirty’ll get ya ten.

Neither Judge David Gustafson nor I attended the institution whose gameday yell first appears at the head hereof, as my expensive colleagues who attended that institution would say. But the Bulldawgs are back, looking for reconsideration. Habitat Green Investments, LLC, MM Bulldawg Manager, LLC, Tax Matters Partner, et al., Docket No. 14433-17, filed 4/23/21 wants Judge Gustafson to oblige them by reconsidering the partial summary J he gave IRS back last June. See my blogpost “The Brush Hog Gives The Brush Off,” 6/30/20.

The Bulldawgs are citing orders in support of their motion, even though that’s a Rule 50(f) no-no, but maybe, just maybe, the Bulldawgs and their counsel started reading this my blog. Howbeit, parsing orders doesn’t turn the Bulldawgs’ bark into a bite. The issue is the impact of the reserved improvements on the 501(c)(3)’s takeout.

“We agree with the Commissioner that the TMP’s motion does not support a deviation from our precedent holding that a subtraction of the value of improvements to the easement property from the proceeds of an extinguishment prior to calculating the proportional share due to the donee under 26 C.F.R. sec. 1.170A-14(g)(6) fails to protect the conservation purpose of the property in perpetuity. The easements in these cases, like those in the cases the Commissioner has cited, do in fact provide for ‘improvements’ to be made on the property subject to the easement.” Order, at p. 4.

Still betting on Judge Holmes’ dissent in Oakbrook.

In spite of it all, I have a love-hate relationship with the Genius Baristas. These dudes keep The Glasshouse on Second Street, Nord-Ouest, in La Patrie de L’Enfant, forever on the twinkle. Their Dawsonian machinations give me blogfodder, rich beyond the ancient fleshpots of Egypt or the angelic bread of the wilderness.

Today, an off-the-bencher from ex-Ch J L Paige (“Iron Fist”)  Marvel furnishes forth the blogger’s table.  It’s Robert Marcel Aschenbrenner & Rediat Badeg Aschenbrenner, Docket No. 2676-20S, filed 4/22/21.

Or rather, it isn’t.

Because when one clicks on the link for the bench opinion on the “Today’s Opinions” pull-down, one gets only the first page of the opinion, directing the hard-laboring Clerk to send the transcript along to Rob & Red.

The rest is silence.

A further delve into the Docket Search does show entry of the decision, namely, viz., and to wit, that Rob & Red owe a $7K deficiency.

But ex-Ch J Iron Fist’s explication of the whys and wherefores remains shackled with fetters of brass to the storm-vext rock of DAWSON.

The Stealth Transcript has become one with The Stealth Subpoena, The Stealth Determination, The Stealth Judge, The Stealth Boss Hoss, The Stealth Status Report, and The Stealth Amendment. See my blogposts thus entitled.

It’s been a wee while, and maybe more than a wee while, since I last awarded a Taishoff “Oh, Please.” For those coming late to this my blog, I award a Taishoff “Oh, Please” to those who make arguments so specious, or so wanting in merit, that they barely escape a Section 6673 frivolity or delay-of-the-game chop. The award comes in various grades.

Today’s award, a Taishoff “Oh, Please” First Class, goes to IRS’ counsel in Julian Wolpert and Estate of Eileen Wolpert, Deceased, Julian Wolpert, Executor, et. al., Docket No. 3182-20, filed 4/22/21.

Trial was noticed for this Monday back in January. Pretrial memos were filed as scheduled at the beginning of this month. When Judge Courtney D. (“CD”) Jones did a pretrial phoneathon with the parties a week ago, she expected a stip of facts prontito.

She got a motion to amend the answer out of time, with a new basis for disallowing deductions. And a motion for a continuance ten (count ’em, ten) days before trial. Somehow IRS’ counsel were unaware that the file from Appeals hadn’t gotten to them before the phoneathon aforesaid.

Judge CD Jones is way more gentle than I would have been, with these facts.

“…petitioners state that granting respondent’s motion would cause them to suffer undue prejudice due to Mr. Wolpert’s age, medical condition, and impairment of their counsel’s resources. Their objection notes that the docketed cases have placed a large amount of stress on Mr. Wolpert and that he wants them resolved as soon as practicable. Moreover, their objection states, ‘Petitioners’ counsel has sufficient resources to bring the matter to trial now and may not be able to do so again until the end of 2021.’” Order, at p. 2 (Footnotes omitted).

Taishoff will summarize the omitted footnotes. Mr. Wolpert is 88 years old and suffers from several debilitating and chronic illnesses. Petitioners are represented by a legal aid clinic staffed by law students. Members of petitioners’ legal team will be unavailable after May 19, 2021 due to the conclusion of the school year. Mr. Wolpert is a surviving spouse. Both he and the Estate of Eileen Wolpert, of which he is executor, are petitioners.

As to the motion for continuance, “(R)espondent has not shown that the requisite exceptional circumstance exists. Nor has respondent demonstrated good reason for failing to make the motion sooner. Moreover, the Court is cognizant of Mr. Wolpert’s age, medical condition, and the likelihood of impairment to his counsel if the proceedings are delayed. Consequently, the Court deems the motion dilatory and will not continue the case from trial.” Order, at p. 3.

See Rule 133. Better have a real good story when you want a go-around on a short final.

As for amendments, leave is freely, right? Yes, when no prejudice.

“More than a year has elapsed since respondent filed the first answer in these consolidated cases, during which time he had ample opportunity to move for leave to amend. Instead, respondent moved ten calendar days before the New York City, New York remote trial session is scheduled to commence. The Court will not grant such a motion at the 11th hour, as doing so would deprive petitioners of fair notice and an opportunity to prepare. Given Mr. Wolpert’s advanced age and ailments, fair notice and an opportunity to prepare are particularly exigent in this case.” Order, at p. 3. (Citation omitted).

Tune in Monday morning for the trial.