Despite the broad discretion accorded to Judge Morrison by FRE 706, and the eloquence of Wm. Sharp, Esq., partner in a well-known and highly-regarded tax specialist shop, Judge Morrison declined to appoint an independent court expert to sew up the raveled sleeve of care and provide the balm of hurt minds to the vexed valuation issue in Neil L. Whitesell & Tracey L. Whitesell, Docket No. 26230-15.

Note there is no written order here. Thanks to one of the very few good things to come out of COVID-19, the teletubby hearing from stronds afar remote, your reporter was on the scene throughout.

Judge Morrison did some very genteel head-banging, but the parties seem far apart, and I don’t see settlement any time soon. Judge Morrison seemed inclined to do an off-the-bencher, but if the numbers are what I was hearing this morning, I doubt that will happen.

This is the Whitesell’s fourth appearance on this my blog. For the backstory, see my blogpost “The Sum of its Parts – Part Deux,” 11/6/20.

Plenty of blogfodder yet to come, I’m thinking.

Just yesterday I gave my patient readers some obiter dicta on the need for petitioners’ practitioners to protect the client with a filing. Although in the event it may turn out to be unnecessary, it is certainly not improvident; the old saw “better to have it and not need it than to need it and not have it” applies to more than insurance policies.

Today I see that IRS’ counsel takes a like approach. While settlement on the eve of trial is a real probability, there’s no harm in trying to buy time before the window closes.

Here’s Erik John Frick, Docket No. 5699-20S, filed, 2/5/21. The story is simple. The dates tell it all.

“This case is currently calendared for trial at the Court’s Boston, Massachusetts trial session beginning February 8, 2021. On January 8, 2021, respondent filed a motion for continuance. On February 4, 2021, the parties submitted to the Court a proposed stipulated decision.” Order, at p. 1.

I’m sure my ultrasophisticated readers hardly need be reminded that Rule 133 sets hearings on motions for continuance to be heard on the trial date, when the motion is made fewer than thirty (count ’em, thirty) days prior to trial. And the motion is likely to be denied, trial to follow then and there.

I expect IRS counsel (now anonymous under Dawson’s Creek, for reasons unknown) wanted to allow time to hammer out the settlement stip, without being under the gun to prep for a trial that might not happen, and as protection in case the settlement negotiations fell apart. And, keeping an eye on the calendar, waited to the last minute to ask.

Ch J Maurice B (“Mighty Mo”) Foley denies the motion for continuance, of course, since there won’t be a trial.

But it’s easier to do a quick petition, or a short set of motion papers, than to be without recourse if things go south.

Suzzanne E. Ogboin, Docket No. 4100-20S, filed 2/4/21, gets embroiled in the too-common conflation of IRS with Tax Court, which bedevils the self-represented, especially when IRS’ well-beloved one-size-fits-all correspondence gambit is in play.

Suzzanne petitions the SNOD at Day 128. Of course, she says she sent IRS something timely.

“Respondent issued a notice of deficiency (notice) on October 21, 2019 to petitioner. The notice stated that petitioner had ‘the right to challenge * * * [respondent’s determination] by filing a petition with the United States Tax Court’ and that she ‘must file * * * [her] petition within 90 days from the date of this letter’. The notice also informed petitioner that ‘[t]he Court can’t consider your petition if the petition is filed late’.

“The notice provided that petitioner “could still file * * * [her] tax return” by sending it to respondent by January 21, 2020. However, the instructions stated (in bold): ‘Important: If you file a return with the IRS and you do not timely file a petition with the Tax Court, you will not be able to contest your liability or penalties with the Tax Court.‘” Order, at pp. 1-2.

Now we hip, battle-hardened practitioners know well that you file a petition immediately, whether or not you’re going to have the client send in a return, amended return, exchange billets doux with IRS, or anything else. You might omit the sixty Georges, and wait for Ch J Maurice B (“Mighty Mo”) Foley to tell you to ante up. But you need to protect the client while the matter gets sorted out. And 90 days wait for no one.

Suzzanne, obviously pro se, gets it wrong. But even Judge Colvin gets it wrong.

“Ninety days from October 21, 2019 was Sunday, January 19, 2020. When the final day falls on Saturday, Sunday, or a holiday the period to file is extended to the following Monday (which, in this case, was January 20, 2020). The notice stated that petitioner had until January 21, 2020. Because petitioner did not file her petition until well after January 20th and 21st of 2020, we need not consider the jurisdictional implications of the notice containing an erroneous date.” Order, at p. 2, footnote 2.

No, Judge, the “erroneous” date wasn’t erroneous. January 21, 2020, was the last date on which Suzzanne could file her tax return with IRS, not the last date on which she could file a petition with Tax Court.

But if Judge Colvin, who has 32 (count ’em, 32) years on the Tax Court Bench, following a distinguished career in government, is confused by this IRS schemozzle, what chance has Suzzanne E. Ogboin (tax qualifications and expertise not stated, but I doubt they’re anywhere close to Judge Colvin’s), or any self-represented nonprofessional, to sort this out?

The IRS one-size-fits-all correspondence gambit again falls short.

All y’all will remember Judge David Gustafson commenting to like effect, for which see my blogpost “Judge on a Tear,” 6/7/19.

Lest I be misunderstood, I am no unregenerate foe of continuing legal education. Even before Our Fair State adopted the Part 22 Rules on CLE, I had more than enough hours to satisfy the requirements every year. One must keep current; law changes at an ever-accelerating rate, and we lawyers are like Mark Twain and his fellow old-time riverboat pilots: “Other craftsmen can ‘sink the shop,’ sometimes, and interest themselves in other matters. Not so with a pilot; he must devote himself wholly to his profession and talk of nothing else; for it would be small gain to be perfect one day and imperfect the next. He has no time or words to waste if he would keep ‘posted.'”

I do, however, object to the “junk CLE” sales pitches. And the “win your case anywhere but in the courtroom” discovery games thus encouraged.

Now I don’t know the facts, the questions, or the documents. So maybe so it’s all justified.

But when I read Judge Nega’s order in Mark Betz & Christine Betz, et al., Docket No. 21587-18, filed 2/3/21*, I get the feeling that things have gotten a wee bit out of hand, and maybe so don’t need to be expanded in the physical or electronic lecture hall.

I won’t paraphrase the two Rule 90 requests for admissions, other than to state that the second contained 922 (count ’em, 922) paragraphs and 854 documents. Read them, and the responses, for yourself.

But I will echo Judge Nega’s plea, noting that our new New York discovery rules bring our State court practice closer into line with the Federal.

“The Court strongly encourages the parties to meet and work together to narrow the issues for trial and stipulate to the fullest extent possible. We take this opportunity to advise the parties that the informal discovery process is essential for the voluntary exchange of facts and documents that enable preparation of stipulations and ‘the more expeditious trial of cases.’ Branerton Corp., 61 T.C. at 692. The parties must participate in this process and, in the course of doing so, we expect them to cooperate informally or formally if necessary.” Order, at p. 3.

*Mark Betz Docket No 21587 18 2 3 21

That’s Martin G. Plotkin, Docket 16224-14L, filed 2/3/21. Martin G. is still at it, reprising his inventive style, which I characterized back in 2019 thus: “Tax Court self-representeds are endlessly inventive. The hard-laboring blogger is often overmastered, trying to keep up with their improvisational reinventions of the game.” See my blogpost “The Banc Shot,” 5/13/19.

Martin G. still has all the balls in the air, and at seven years into the program and still a foe of electronic filing, the end is as far off as ever.

In less than a month, Martin G. “filed a ‘motion to the Court to review and revise it’s [sic] Order dated November 18, 2020, denying petitioner’s amended motion requesting recusal’.” Order, at p.1.

And,”… a motion for a continuance in which he stated that he would have difficulties participating in a trial through videoconference. Respondent does not object to a continuance.” Order, at p. 1.

And “… a motion for permission to file an interlocutory appeal.” Order, at p. 1.

And “…a motion for continuance. We will file this a [sic; I think you meant “as”, Judge] petitioner’s supplement to his… motion for continuance.” Order, at p. 1.

IRS offers a remand, so the SO can explain “…what facts she relied upon, what law or procedures she considered, and how she reached the conclusion she did as to the balancing test.” Order, at p. 1. Because Martin G. wants to know. And to participate therein.

Judge Morrison allows that, and denies the rest.

La partie continue.

Generally (don’tcha just love that word?) as a journalist I’m frustrated when someone declines to comment. But as an attorney, I approve when a colleague declines to try his cases in the media.

I saw what seemed an interesting lead the other day on a possible story. An attorney in a pending Tax Court case is seeking an order certifying a question of law to the AL Supreme Court. A source tells me that Rule 18 of the AL Supreme Court provides “(W)hen it shall appear to a court of the United States that there are involved in any proceeding before it questions or propositions of law of this state which are determinative of said cause and that there are no clear controlling precedents in the decisions of the supreme court of this state, such federal court may certify such questions or propositions of law of this state to the supreme court of Alabama for instructions concerning such questions or propositions of state law, which certified questions the supreme court of this state, by written opinion, may answer.”

It sounded like this could be a conservation easement extinguishment case, in which, unlike the recent GA cases where it seems the GA Supreme Court has ruled, AL has no, or almost no, appellate learning on point. Our NY Court of Appeals (our highest court; our Supreme Court is our trial court, for historical reasons) has a more limited form of the AL rule. NY Rule 500.27 only applies to the Supremes, the CCAs, and the court of last resort of any State. When it comes to our Court of last resort, pore l’il ol’ Article I Tax Court is out in the cold. Maybe our last resorters can’t be bothered with what the late Justice Antonin Scalia likened to a village traffic court.

Howbeit, here’s the question I put to the attorney for the petitioner, and his reply. Name omitted.

“Mr J, I manage the LinkedIn Tax Technical Discussion Forum, of which you are a member. I see your firm represents the petitioner in Montgomery-Alabama River LLC, Docket No. 9254-19, in Tax Court. I’m a journalist as well as an attorney, and see you’re moving to certify a question in that case to the AL Supreme Court. Is this a conservation case? Is this an easement extinguishment question? I’d like to do a blogpost on this subject on my blog taishofflaw.com. Would you care to comment? Thank you for your consideration.”

He responded thus: “Hello Lewis, Thank you reaching out.  Unfortunately, we don’t comment on our pending cases.  Best regards,”

I replied that I entirely understand, and thanked him.

As I said, I well understand, and appreciate, that an attorney would rather try his case in court, and not in the media. But as a journalist, I still have to ask.

I will, of course, follow the case for any reported order of substance or decision.

Tom and Joanne can’t say they weren’t warned. A year ago I said it all in my blogpost “Show Up,”1/17/20.

Well, as I predicted back then, they didn’t.

So today we have Thomas V. Meyers & Joanne T. Meyers, Docket No. 8459-19, filed 2/1/21. After an off-the-bencher, Judge David Gustafson sent Tom, Joanne, and IRS off to a Rule 155 beancount.

“On March 17, 2020, the Court issued its notice of filing (Doc. 20) of computation under Rule 155, giving petitioners the opportunity to file an objection or alternative computation on or before April 6, 2020.

“There has been significant passage of time since the order was served on April 7, 2020, and petitioners have filed no such response.” Order, at p. 1.

So Judge Gustafson decides IRS’ numbers control.

So the takeaway on this snowy evening, when we see an eighty-seven-year-old snowfall record broken, is the same as it was last year: Show up. You can’t ever tell what will happen if you do, but you sure know what will happen if you don’t.

To my readers old and new, regular and casual drop-ins, my very best thanks for making January, 2021, the month with the most views ever in a single calendar month, and providing the two-hundred-thousandth view since I began back in 2011.

Looking forward with hope to a great year ahead.

I generally (love that word!) omit the names of non-counsel IRS personnel from my blogposts, but Judge James S (“Big Jim”) Halpern is convinced that SO McGee (even if not named Bobby) got it right. So I’ll name SO McGee, as I remember the 1971 Kristofferson-Foster blockbuster hit, and tell the story of Joseph A. Sciarretta, and Carolyn C.  Sciarretta, Deceased, Docket No. 12324-19L, filed 1/29/21.

Taxpayer claims overpayment for a year nine (count ’em, nine) years prior to the NITL for the four (count ’em, four) later years at issue, thus deficiency is wrong. Except taxpayers filed six years late for the overpaid year, and overpayments are deemed made as of due date of return for that year, without regard to extensions.

See Section 6511(a), the famous 3-and 2 count (must claim refund 3 years from when tax due, or 2 from when tax paid; if not timely claimed, you’re called out on strikes). See my blogpost “Lookback in Anger,” 12/12/11.

And taxpayer never sent in the info SO McGee needed for a collection alternative.

“The record shows that SO McGee verified that the requirements of any applicable law or administrative procedure were met. He addressed the issues petitioners raised during the hearing and determined that there were no overpayments to apply against petitioners’ unpaid liabilities. Petitioners did not properly raise any other issues. SO McGee determined that the filing of the levy notice appropriately balanced the need for the efficient collection of taxes with petitioners’ concern that the collection action be no more intrusive than necessary.” Order, at p. 5.

Good enough for Judge Big Jim.

If you just finished reading my blogpost “Go Down, Moses,” of even date herewith (as my high-priced colleagues would say), you’re doubtless hanging breathless on the fate of Stephen Whatley and Lucile M. Whatley, 2021 T. C. Memo. 11, filed 1/28/21, part of Kevin Sells’ als, who starred in the aforementioned, and was tried with them, but this part was briefed separately, as it involves different issues.

It’s Steve’s story. Steve said he was a cattle farmer, although he owned no cattle until the last of the five (count ’em, five) years at issue. Steve’s day job was as a supersuccessful banker. He was chairman, president, CEO and largest stockholder of the bank which he founded, although he was the scion of eleven (count ’em, eleven) generations of farmers in Lee County, AL. He did pick cotton as a boy, and ran a timber business for two years in his youth, some 35 years ago. He was always a worker, and in his seventies was putting in 70 hour weeks running from branch to branch, and taking care of business.

He did put in 750 hours a year at the farm.

By this time, I’m sure my colleague Peter Reilly, CPA, is marking down Steve for his “you can win a Section 183” handbook, to show his readers how not to do it. And Judge Holmes does the homework, with a bow to that most-cited jurist, Judge Richard Posner, now retired from 7 Cir.

“The Seventh Circuit has called this open-ended test of objective factors of subjective intent “goofy” and has chosen not to ‘wad[e] through the nine factors,’ but instead to take a more holistic approach. Roberts v. Commissioner, 820 F.3d 247, 250, 254 (7th Cir. 2016), rev’g T.C. Memo. 2014-74. This case, though, is appealable to the Eleventh Circuit. So we’ll trudge along the well-blazed trail and address each specific factor, as well as any other additional facts we find important to determine if Whatley was engaged in farming for profit.” 2021 T. C. Memo. 11, at p. 15.

Though a banker, Steve’s bookkeeping was such that he would have fired any of his bank’s employees who did likewise.

He was in the Conservation Reserve Program, whereby the guvmint paid him to do nothing with the land during the years at issue.

He did some timbering research, as the land had trees, but the extent and particulars thereof never made it into the record in sufficient detail to give Steve a winning factor. His 35-year-old timbering operation experience didn’t help, either.

Steve put a first-class dwelling on the farm. Judge Holmes does such a beautiful job describing it, that if ever he retires from Tax Court, he’ll be a great success as a real estate salesman. But Steve so thoroughly intertwangles his home mortgage deduction with his disallowed farm mortgage deduction that Section 163 doesn’t help him.

But claiming he’s a cattle farmer really caps it off.

“As to the farm’s cattle operation, Whatley explained that he’d wanted to introduce cattle ‘from day one.’ Whatley testified that he consulted two cattle experts for advice, but those men managed much larger herds–600 and 1,500 head respectively–than what Whatley could reasonably expect to put on his property. Whatley, however, could not recall when this consultation took place or what advice he received. In any event, he didn’t actually have cattle on his property until at least 2008, right after he learned that the IRS was going to audit him. And he explained that many of the activities that he reported as related to cattle were really activities that he undertook in preparation for cattle that would arrive sometime in the future.” 2021 T. C. Memo. 11, at p. 8.

There’s twenty-six (count ’em, twenty-six) pages more, but I guess we can stop here.

Except.

IRS does the Michael Corleone number when it comes to Section 6751(b) Boss Hossery, so no chops.