Back in May, The Palmolives (Palmolive Building Investors, LLC, DK Palmolive Building Investors Participants, LLC, Tax Matters Partner, Docket No. 23444-14, filed 5/27/20) stiped out. The Palmolives gave up the $33 million façade easement, got to keep the basis split among façade, retail and condos (which is good news for us lawyers who represent condo developers), and walked on the chops.

OK, so this is old news. And I’d made an unspoken resolve not to chew my cabbage twicet while Dawson’s Creek submerged The Glasshouse that Vic Built.

Y’all will recollect I gave the Palmolives’ trusty attorneys a Taishoff “good try, hors classe” in my blogpost “Judge on a Tear,” 6/7/19. And while I didn’t say so then, I fully expected a trip to 7 Cir, even though The Palmolives’ try for a Section 7482 interlocutory appeal had already cratered (see my blogpost “What’s It Worth?” 11/14/17).

After all, there followed five (count ’em, five) stipulations of fact with exhibits, and four (count ’em, four) volumes of trial transcript through this past January. Check out the docket search.*

After all that, why fold without getting a decision and taking the appeal? The trial was paid for. Bar the interest and the legal fees and disbursements, it couldn’t get worse.

Maybe the retirement of Judge Posner, 7 Cir’s true original and a primordial judicial rebel, in September 2017 is the answer. His famous statement on his retirement sums up why dictionary chaws and slavish adherence are so much flubdubbery: “I pay very little attention to legal rules, statutes, constitutional provisions. A case is just a dispute. The first thing you do is ask yourself—forget about the law—what is a sensible resolution of this dispute? The next thing was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. And the answer is that’s actually rarely the case. When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

Ya gotta love the dude, whether or not you agree with him. And that would have been an opinion I would have loved to blog.

Edited to add, 9/8/21: Of course the Genius Baristas sealed the stip-out, even though it had been online for all to see under the previous system.

*Docket Search Palmolive

I’ve hitherto loudly lamented that one had to surry on down to the stoned soul Glasshouse in the Wannabe State to obtain a glimpse of briefs and like filings, the same not being available via PACER.

But COVID-19, the proverbial ill wind, may have blown a scintilla of good.

Though the “small court,” notoriously shy and best known for the large bushelbasket under which it keeps its light, has kept this a well-hidden secret, I hasten to play the Matthew 10:27 gambit.

Here’s the story: “Until further notice, requests for copies of Court records from non-parties (copy requests) must be made by telephone and will be fulfilled electronically by email. The Court’s fees with respect to these copy requests will be $0.50 per page, with a per-document cap of $3.00. The Records Department can be reached at (202) 521-4688.”

Cheaper than PACER, given the three-buck cap. Any document you want, for the price of a bottle of Trader Joe’s famous plonk. 

My colleague Peter Reilly, CPA, sent me the following request, asking that I would circulate it on this my blog. While I do not generally refer my readers to other sources, Mr Reilly is a valued colleague, and I am glad to oblige him.

He writes: “I am soliciting nominations for best Tax Court decision of 2020.  Any criterion at all is acceptable.  I go by humor, practical significance and broader meaning.”

Send your suggestions to him by commenting on his blog http://blogs.forbes.com/peterjreilly/

I have already given him my choice, but to avoid tainting the jury pool I will not mention it here.

Edited to add, 12/1/20: Please use yourtaxmatterspartner.com  for comments. Forbes doesn’t take comments, for whatever reason.

As I said back in September, 2012 B.C. (Before Corona), “This was the title of the fictional rogue General Flashman’s memoirs, as discovered in a saleroom by the late G. M. Fraser.” But it suits the departure of Judge Ruwe, finally retired as of last Wednesday.

Here’s the skinny: https://ustaxcourt.gov/resources/press/11302020.pdf

I had suspected this was in the works, but hesitated to break the news without some confirmation. The stillness from Public Affairs should have given me a clue. See my blogpost “From My Notebook – Part Deux,” 7/21/20.

Howbeit, I and all my readers with Judge Ruwe a happy retirement.

I’m revealing no tricks of the journo trade with that headline. Every journo with no ideas and a future deadline can fall back on that oldie-but-goodie. And there are enough old-timers and once-upon-a-timers to fill the odd column; and enough readers who remember them, or who wish they’d been around way back when.

I haven’t sunk to that depth yet. But the Dawson’s Creek floodwaters have reached oppressive levels. I leave to the trade press and blogosphere the task of covering the Big Courts, those who shelter beneath the wings of Article III. They also do the 1111 Constitution Ave, NW, scene, with sources and resources accumulated years before I showed up. They have moats I won’t try to cross.

So where are they now, the humble Small Courtiers that provide the fodder on which feeds this my blog?

I suppose the judges are writing the orders and opinions that will arise when Dawson’s Creek subsides, poking out like cars from a flooded underpass, supposedly before New Year’s Eve.

The hardlaboring intake clerks and flailing datestampers, hitherto driven by electronic filing to endangered-species status but back in action for the present, went back a couple weeks ago (hi, Judge Holmes) to The Glasshouse that Vic Built. I imagine they are again reading the mail, stamping and filing.

Come to think of it, maybe Tax Court’s love of wet-ink petitions and amendments thereto is motivated by a desire to keep the intakers taking and the flailing datestampers flailing away, rather than standing in the unemployment line. I refuse self-checkout lines at the grocers’ for the same reason. But that’s another story.

Meantime, I’ll keep writing this blog.

He wasn’t a member of the Sheepshead Bay seafood dynasty, beloved of The Girl of My Dreams. How often has she told me of her childhood feasts, standing in the steamy messhall of the above-referred-to dynasts, coat over arms, waiting for the satiated to vacate a table and let her and her family at the goodies. And what meals they were, she says. They improve with the passage of time. But gone, alas, like our youth, too soon.  

No, Vic Lundy is the subject of a panegyric from the GSA, in its pre-political days. Vic, it happens, aside from a CIB and a Purple Heart to his credit, is the architect who designed The Glasshouse at 400 Second Street, NW, and brought the job in on time and on budget; for which he should have gotten at least two more gongs beside the Medal of Freedom Gerry Ford gave him.

Check it out.

Even though Hugh Wheeler’s 1961 opus thus-entitled got pulled after but five (count ’em, five) performances, the title serves as a headpiece for this Thanksgiving Day.

Vic Lundy’s MidMo masterpiece remains shuttered. Such gatherings as there are remain restricted, subject to the Supremes’ latest pronunciamento.

Still and all, we have much for which to be thankful.

We’ve gotten this far.

Happy Thanksgiving.

I echo Herbert Kretzmer’s last-millennium lament as I scan the locked-down Tax Court website, and recall my blogpost “Aground in Dawson’s Creek,” 10/20/20.

My dream is a United States Tax Court Bar Association. No, not another magnet for practitioners’ dollars; all of us have seen plenty of those. And not another Continuing Ed vending machine, either. Ditto.

What I dreamed is voices louder than one voice. We all know (if I’m not deluding myself) that changes in the Glasshouse procedures and rules are necessary. COVID-19 rammed the lesson home. And how!

All-electronic filing is necessary. Many courts, Federal and State, have gone all-electronic, with special webpages to provide access for the self-represented. The wet-ink petition and amendments are relics, and should be recalled, if at all, in the next edition of Dubroff and Hellwig. Rule 34 points the way. Time to make it happen.

And geography is irrelevant. Remote trials are happening, and no one has noticed any material degradation in results. If there are any, these should be noted as soon as possible, and publicly, so any can be remedied. But the expense of a traveling court is a real negative. Computer access is easier to provide, and cheaper.

The Stealth Subpoena and kindred deviations from FRCP need to be examined and, where appropriate, harmonized.

Extensions of time, where clients are not prejudiced, should be mandated to be mutual. Our New York State Chief Judge’s Civility Rules have so provided for years. It should not be up to individual judges (thank you again, Judge Emin (“Eminent”) Toro) to police attorneys’ conduct, much less for bloggers to have to waste electrons thereon.

Entry of Appearance for law firms is past due. The oldest New York law firm I know of started in 1797, and I’m sure some even older are flourishing in several jurisdictions. I know Tax Court is a specialized court requiring separate admission for each attorney, but since a current certificate of good standing and fifty Georges is all it takes, why not permit a law firm to enter appearance for all its USTC-admitted attorneys on one form? If it be objected that the hardlaboring clerks can’t send communications to dozens of attorneys in the tax department of a multinational white-shoe, the form can designate a lead (sort of a tax matters partner) who gets everything, but any attorney on the form can cover a routine calendar call or similar show-up. Every firm I know of in any other court can do that, with no ill effects. Of course, showing unprepared, or without authority, for something substantive, without a real good excuse, doesn’t cut it. Ditto for USTCPs, if any are such firms.

More to follow.

But one person saying this is worthless. And other practitioners may have good arguments why any or all of the foregoing lack merit, or need major overhauls.

But without a central forum where all this can be debated, and the wheat separated from the cliché, and where Ch J Maurice B (“Mighty Mo”) Foley and his colleagues can be presented with something better and bigger than ever I could muster, all will remain The Dream I Dreamed.

I said it here too many years ago: “One sure way to drive a coach bananas is to fail to finish a play.” And pro ses are inordinately prone to such failings. Again and again I see pro ses not returning decision documents that help them. Dismissal for want of prosecution hasn’t the same preclusive effect as a decision explicitly determining the matter.

I’m going through pre-Dawson orders to find blogfodder, as new filings are off the menu until December 28 (those with an ironical bent will note that, among certain persons, December 28 commemorates the slaughter of the innocents).

Michael Patrick O’Donnell, Docket No. 14693-19, filed 11/19/20, doesn’t respond either to IRS or the repeated importunings of Judge David Gustafson’s staff (doubtless as obliging as he is). IRS avers that Michael Patrick has similarly dodged them, doesn’t owe any tax, add-ons or chops, and wants Michael Patrick’s petition tossed.

OK, if IRS says he owes nothing, why should Michael Patrick say or do anything? He might be saying “Just make it go away; how y’all do that is your problem.”

Except.

“…the Commissioner of the IRS filed a ‘Motion to Dismiss for Failure to Properly Prosecute’ (Doc. 9), asserting that any refund otherwise due to Mr. O’Donnell is barred by the statute of limitation (I.R.C. sec. 6511(b)(2)(B))….” Order, at p. 1.

Did Michael Patrick claim a refund was due? Did IRS plead SOL in the answer? In an amendment thereto? On brief? Or is this motion the first time IRS woke up?

Remember the last time I spoke about finishing the play? You may very well not, because it was back in 2012; see my blogpost “Finishing the Play – Part Deux,” 5/10/12.

Then a petitioner was late with the SOL argument, earning the following rebuke from Judge Gale. “Petitioner did not plead the statute of limitations as an affirmative defense as required by Rule 39. Petitioner did not raise the issue during the evidentiary hearing, nor has he at any time moved to amend the pleadings so as to include this omitted affirmative defense. Petitioner’s failure to plead the statute of limitations in his petition or in an amended pleading constitutes a waiver of the issue. Moreover, petitioner’s raising of the issue for the first time on brief would prejudice respondent, who has been deprived of the opportunity to present relevant evidence, such as evidence that petitioner consented to extend the period of limitations. We decline to consider this issue.”

I don’t say arguing the point would have produced a win for Michael Patrick, because there may be facts I don’t know. Maybe IRS did timely plead SOL, but why would they specifically mention SOL in their motion, when all they need say is nothing due to IRS or to Michael Patrick, as is done in countless decision documents?   

Howbeit, petitioners, walking away gives it all up. Even if you hit a walk-off homer, you have to run the bases.

I’d said that, prior to The Big Sleep on Dawson’s Creek, Tax Court unleashed over one thousand (count ’em, one thousand) orders last Thursday and Friday, so many that the daily orders search function was overwhelmed. And I also said that I’d be strip-mining them, seeking ore to refine for this my blog.

Here’s one nugget, from Judge Mark V Holmes, Renee K. Rood, et al., Docket No. 12033-13, filed 11/20/20. Both Renee and IRS were hopeful that an OIC would solve their problems. But getting there, unlike a Greyhound bus trip, wasn’t half the fun.

“They have not as yet been successful, as various obstacles–including most recently the pandemic–keep emerging. In our last teleconference with the parties we stressed that the making and remaking of offers in compromise that don’t get accepted means that settlement may not be realistic. The Court will adopt respondent’s reasonable suggestion for one last status report, but will then put these cases on a pretrial track aiming for trial in May 2021.” Order, at p. 1.

Yes, there are ever-emerging obstacles, as Dawson’s Creek merges with the Blue Danube to give parties new opportunities for indefinite waltzing. But unless the offers manifest a sense of the ridiculous, or the rejections savor of “my way or the highway,” perhaps mediation via Zoom might bring the parties to “yes,” better than the threat of a trial six months away.

And it might could be maybe so that the mediation takes the form of some gentle judicial head-banging; see my blogpost thus entitled.