Whether Pliny the Elder or Seneca first said it, the template remains. Ex CLEflogger semper aliquid novi. Today, it’s yet another novelty in the peddler’s pack, and even though they’re on for trial Monday, FBA St. Clair Property C, LLC, Jeffrey L. Smith, Partnership Representative, Docket No. 14406-23, filed 9/12/25, have a motion in limine that’s a real swangdangler.

I’ll turn it over to Judge Elizabeth A. (“Tex”) Copeland. The C-Clairs request “(1) ‘the Court exclude from trial all evidence relating to tax filings of other taxpayers, other entities, and other tax liabilities not before this Court’ and (2) that ‘the Court rule in advance of trial that Respondent is prohibited from introducing evidence related to any property or taxpayer other than [St. Clair C] and FBA St. Clair Property, LLC (‘St. Clair A’).]'” Order, at p. 1.

“This request was made without regard to whether any such evidence might be relevant to the issues presented in this case, such as a donation or valuation of a property adjacent to or in the same County as the subject property.” Order, at p. 1.

I need hardly award a Taishoff “Good Try, Hail Mary Division” to the redoubtable Vivian D. (“Golden”) Hoard, Esq., C-Clair’s trusty attorney. Be there scarcely enough ice to chill a London pub pint (45 F.), and be the sun at zenith, VDH is on the march.

Judge Tax Copeland isn’t having any.

Judge Tex Copeland will seal any taxpayer info that Section 6103(h)(4) doesn’t cover, and publicly available info like recorded deeds, sales contracts, local property tax records, testimony from sellers, and judicially-noticeable 201 FRE stuff go in anyway, unshielded by Section 6103.

Of course, VDH and her trusty and battle-hardened colleagues can object to individual items on 402 and 403 FRE bases, and anything else they can think of, at trial.

Finally, that the C-Clairs stiped to be bound by evidence in a test case doesn’t preclude introducing relevant and probative evidence here or prevent Judge Tex Copeland from blocking any irrelevant or incompetent evidence. While principles and parameters are limiteds to those in the test case, valuation of real property is always a one-off, as every piece of real estate is unique.

No, not a law firm, rather the Scylla and Charybdis whereupon founder Section 7623 whistleblower discovery demands. STJ Diana L. (“Sidewalks of New York”) Leyden drives home again the ironclad record rule limitations in Joshua L. Gottlieb, Docket No. 23996-18W, filed 9/12/25.

Josh’s trusty attorney, whom I’ll call Scott, wants to supplement the administrative record “with documents in connection with the examination performed by IRS employees and communications between those employees and an IRS criminal investigation division special agent. Petitioner has not proffered any such documents. To the extent the Court can construe petitioner’s Motion to Supplement the Administrative Record as a request for discovery, that relief is typically not available in administrative record cases, such as this one. See Berenblatt, 160 T.C. at 534. The Court has held that the administrative record filed by respondent enjoys a presumption of correctness absent clear evidence to the contrary. Berenblatt, 160 T.C. at 534. There exists a narrow exception to this presumption if the party moving to compel discovery makes a significant showing that it will find material in the WBO’s possession indicative of bad faith or an incomplete record.” Order, at p. 4.

Scott has neither documents nor anything to show bad faith, at least not enough to pass muster with STJ Di.

IRS’ paperwork, though not of the best, shows that they knew about some of what Josh claims four (count ’em, four) years before Josh blew, was already auditing some at the time, and on the rest took no action.  Order, at p. 2.

I fear my advice comes too late for FBA St. Clair Property C, LLC, Jeffrey L. Smith, Partnership Representative, Docket No. 14406-23, filed 9/11/25. The C-Clairs claim IRS refuses to stipulate that the C-Clairs had donative intent despite two (count ’em, two)  previous stips replete with the word “donation” defining the easement grant (just shorthand, says Judge Elizabeth A. (“Tex”) Copeland) and an uncontested CWA saying no goods or services.

Judge Tex Copeland says the CWA covers only what the 501(c)(3) guardian gave, not what other benefits the C-Clairs may have gotten (here access to landlocked property).

The SND had the usual IRS buckshot boilerplate “you didn’t comply with Section 170,” which takes in everything in the multipart statute and impenetrable regs. So 170(c) donative intent isn’t new matter, and anyway it’s mixed law and fact.

Practice tip: when confronted with this broadbrush maneuver, track the statute in your first request for stipulations. If you are going to stipulate, sell your concessions as dearly as you can.

Judge Emin (“Eminent”) Toro confronts the old Sub S low-wage-high-profit gambit, whereby the operators pay themselves minimal salaries subject to FICA/FUTA and maximum profits which aren’t.  Ayla A. Savage, 165 T. C. 5, filed 9/11/25, mixed the dodge with the guided Congressional largesse of TCJA, specifically Section 199A, deducting all such payments, whether subject to FICA/FUTA (so-called “W-2 wages”) or not.

Moreover, Ayla and fellow Sub S-er Patricia, with whom she is here conjoined, were potters, so Section 280E’s anti-doper provisions are in play as to two of their three Sub Ss.

The parties stiped out everything but whether the total wages paid by the Sub Ss or the reduced amount IRS allows get the Section 199A deduction.

The usual tax law setup: W-2 wages, which are deductible, are defined as everything in Section 6051(a)(3) and (b), except anything that is not qualified business income (as defined in Section 199A(c)(1) and not reported on a Form 941. The 6051 stuff is salary and wages and deferred comp and tax-advantaged retirement account contributions. Now even stuff reported on Form 941 (and the W-2 the employee gets) may not make the Section 199A cut if it’s not properly allocated to qualified business income.

So plain meaning, which sets up the usual dictionary chaw and psycholinguistic hopscotch, ably performed by Judge Eminent Toro, 165 T. C. 5, at p. 8. As the pidgin English scholars would say, “b’long pidgin.”

So Section 199A(c)(3) only lets in what is included or allowable in computing taxable income for year at issue. Section 280E excludes potting wages as deductions.

“But nondeductible wages cannot be included in ‘qualified business income’ for purposes of section 199A(c)(1) because the statute expressly excludes them from the scope of that concept. In view of that statutory command, such wages are not capable of being designated to go correctly with (or being set apart for) qualified business income. They do not ‘fit’ ‘correctly’ under that statutory construct and, therefore, are not properly allocable to it. And if nondeductible wages are not properly allocable to qualified business income, they cannot be ‘W–2 wages’ as defined in section 199A(b)(4)(B).” 165 T. C. 5, at p. 10.

Ayla and Pat argue that they reported all wages on the 941s, and IRS is trying to put arbitrary limits thereon via the regs. No, says Judge Eminent, Congress did that.

“As we have explained, the Commissioner’s interpretation of section 199A tracks the relevant statutory provisions and gives meaning to each of them. Section 199A(c) expressly tells us how to treat amounts that are not ‘allowed in determining taxable income for the taxable year.” I.R.C. § 199A(c)(3)(A)(ii). Specifically, we must exclude them from qualified business income, and they cannot be ‘properly allocable’ to such income. Therefore, nondeductible wages likewise cannot be ‘W–2 wages’ as the statute defines that term. The Commissioner does not ‘add to the statute something which is not there,’ Pet’rs’ Op. Br. 13 (cleaned up), when he insists that the statutory provisions be followed.” 165 T. C. 5, at pp. 11-12. (Footnote omitted).

That Section 199A looks like old Section 199 DPAD doesn’t mean it’s the same. Congress knows the difference. Ayla and Patricia only get what IRS allows.

Ch J Urda, and Judges Kerrigan, Buch, Nega, Pugh, Ashford, Copeland, Jones, Greaves, Marshall, Weiler, Way, Landy, Arbeit, Guider, and Fung, are all on board with this.

But Judge Rose E. (“Cracklin'”) Jenkins isn’t.

Congress listed the businesses that didn’t qualify, and pottery isn’t there. See Section 199A(d)(1) and (2). “And Congress did not amend section 280E to disallow the section 199A deduction, leaving respondent conceding that it is available with respect to petitioners’ cannabis-related businesses.” 165 T. C. 5, at p. 15.

Anyway, Ayla and Patricia are still inhibited by Section 280E.

“I appreciate the concern that petitioners are deducting the lower amount of wage expenses allowed after application of section 280E, thereby increasing their qualified business income under section 199A(c)(1), while seeking to take into account a higher amount of wage expenses unlimited by section 280E for purposes of the cap based on ‘W–2 wages.’ However, because the higher amount of ‘W–2 wages’ is used only for purposes of the cap based on ‘W–2 wages,” it does not allow the amount of the deduction to exceed 20% of qualified business income and taxable income (as determined for purposes of section 199A), which is higher simply by virtue of the application of section 280E. Accordingly, the drug-trafficking deterrence objective of section 280E is still furthered by the resulting overall tax burden relative to gross income, as compared to a business that is not subject to section 280E. And that is accomplished without a distorted reading of section 199A. Allowing a qualified business with meaningful wage expenses a deduction of up to 20% of taxable income, however taxable income is determined, is consistent with the goals of section 199A. Accordingly, I am not swayed by respondent’s equitable, policy-based argument.” 165 T. C. 5, at pp. 18-19. (Footnotes omitted).

I report, you decide.

I’ve often commented on, and deplored, the lengths to which dodgers and protesters will go in their quest for unearned victory. But in Ivey Branch Holdings, LLC, Ivey Branch Investors, Tax Matters Partner, Docket No. 19189-19, filed 9/11/25, IRS counsel shows they can go head-to-head with the leaders in the dodge-and-protest game.

The Ivey Branches stip to go with 11 Cir’s eventual decision in J L Minerals. For the backstory of J L Minerals, see my blogpost “Blunging Farblundgeit,” 10/8/24.

So Judge Albert G. (“Scholar Al”) Lauber, with what one imagines is a sigh of relief, lets all the trial subpoenaed witnesses go free, moots out a couple motions (hi, Judge Holmes), and drops the case off two (count  ’em, two) trial calendars.

But one motion remains, and thereby hangs the cliché.

“…respondent filed a motion for partial summary judgment contending that the charitable contribution deduction should be denied in its entirety because the Ivey Branch property is allegedly encumbered by an easement, granted to an electric utility entity in 1975, that would permit erection of electric utility lines over the property.” Order, at p. 1.

Fifty (count ’em, fifty) years old.

Minor fact questions: are such lines already there? If so, do they serve a conservation purpose, e.g., powering devices that detect poachers and trespassers and fire, or nighttime cameras that detect animal and bird activity, thus protecting such a purpose? If not, will the electric utility suddenly erect such lines gratuitously and without notice to the landowner after fifty years of inaction? Is not this easement a de minimis restriction, or a contingency so remote as to be negligible?

I’m a fan of summary J, but this is ridiculous.

Joseph R. Gottesman, T. C. Memo. 2025-94, filed 9/10/25 is living the 1939 hit tune by Michael Carr and Jimmy Kennedy. Joseph R. Gottesman (that’s Doc Gottesman, MD, hereinafter sometimes “Doc G”) is south of the Border, down Mexico way, because there’s an active arrest warrant awaiting him in Phoenix, AZ, where he requested trial. Doc G listed Laredo, TX as his mailing address, although he resides in Jalisco.

Judge Courtney D. (“CD”) Jones spends a whole footnote sorting out where to lay venue for Doc G’s appeal, and finally ends up with DC Cir, the Section 7482(b)(1) flush language default. But Taishoff is prepared to bet Judge CD Jones one of his own self-made special pineapple jalapeño Margaritas against a warm bottle of Modelò Negra that Doc G appeals nothing.

Doc G has plenty of badges of fraud to merit the thoroughly Boss Hossed Section 6663 fraud chops IRS wants to add to the SND (which Judge CD Jones calls a “NOD,” which is confusing; a Notice of Determination, e.g., from a CDP or an innocent spousery, is properly shortened to “NOD.” A Section 6212 statutory notice of deficiency is a “SND.”). The deficiency is north of $300K, T. C. Memo. 2025-94, at p. 6.

The rap on Doc G is one count of Section 7201 criminal tax evasion. Doc G moves for an indefinite stay of all proceedings until his criminal case is heard. But he won’t go to Phoeniz, AZ for fear of arrest. While Fifth Amendment concerns may be valid, there is no blanket exemption. Each question in discovery or the trial stands on its own.

“In the Motion to Stay, he states that he fears arrest if he appears in the District of Arizona. Of note, Dr. Gottesman has not represented that he will now or at any time in the near future appear to face criminal charges or work to resolve his criminal case. Thus, it appears that he is abusing this Court’s process by seeking an indefinite stay while he avoids prosecution in the criminal case.” T. C. Memo. 2025-94, at p.14.

Ya gotta say Doc G has a set of high-carbon chromium alloys.

But Judge CD Jones isn’t wearing any Margaret Atwood red hat. “This Court will not be a handmaiden to such tactics.” T. C. Memo. 2025-94, at p 13.

Summary J to IRS for deficiency and chops. No stay for Doc G; show for trial or default.

Ex-Ch J Maurice B. (“Mighty Mo”) Foley is a contender for shortest full-dress T. C. of the year with Artena Moon and Kenneth Moon, 165 T. C. 4, filed 9/10/25. Artena & Ken claimed they placed their Chevy Volt in service each year between 2013 and 2019, and took the one-time Section 30D $7500 credit in each such year.

Nope, says Judge Mighty Mo. While Section 30D doesn’t define “placed in service,” the operative statutory consideration for the year in which to take the one-time Congressional largesse, Section 38 does.

“While section 30D does not define “placed in service,” the phrase is defined in regulations relating to other sections of the Code. For example, the section 38 general business credit is allowed only for the taxable year in which the taxpayer first places section 38 property in service. See Treas. Reg. § 1.48-1(a). Section 38 property is placed in service the earlier of when ‘the period for depreciation with respect to such property begins’ or the property ‘is placed in a condition or state of readiness and availability for a specifically assigned function.” Treas. Reg. § 1.46-3(d)(1). With respect to the section 38 general business credit, this Court has held that property is placed in service when it is in a condition to be regularly used for its specifically assigned function.” 165 T. C. 4, at p. 2.

Artena and Ken get the credit for 2013 and lose 2019. What happened to 2014 to and including 2018?

“Upon purchase, petitioners’ vehicle was ready, available, and used consistently with its specifically assigned function. Accordingly, petitioners’ Chevrolet Volt was placed in service in 2013. We note that prior to the year in issue, petitioners had claimed the maximum $7,500 one-time section 30D credit on their 2013, 2014, 2015, 2016, 2017, and 2018 tax returns. The credit was allowable only for the taxable year petitioners’ vehicle was first placed in service. Petitioners certainly were not entitled to the credit relating to 2019.” Order, at p. 3.

Note the SND only spoke to 2019. Maybe SOL took out the rest.

IRS conceded the accuracy chops.

Bet Walt Whitman never thought of this one.

Not a decision against a client, rather the settlement of a Tax Court case that promised good blogfodder in a time where such is scarce. Judge Adam B. (“Sport”) Landy, doubtless glad of any weight reduction in his docket, announces that IRS and  Estate of Stanley E. Fulton, Deceased, Michael B. Fulton and Elizabeth Fulton Jones, Co-Executors, Docket No. 7200-22, filed 9/9/25, have filed a stip of settled issues that disposes of the entire SND.

Hence, no trial. And no orders disposing of the eleven (count ’em, eleven) pending pretrial motions. The whole shootin’ match is moot. The special trial session in DC is canceled and continued from trial, although I’m not sure what there is to continue. And the deadlines in the scheduling order after last month are canceled too.

I’ll truly miss number six on Judge Sport Landy’s list of canceled motions, the Motion to Compel the Taking of Deposition of Deborah Fulton, Lucinda Tischer, and Stanley Fulton Pursuant to Tax Court Rule 74(c)(2) (at Doc. 244), filed July 28, 2025. I trust the Stanley Fulton named therein is not the first-named party in the caption; that would indeed be a one-sided deposition.

Btw, so far this case has yielded blogposts “Insurance, Sure – When?” 5/7/25, and “The Spurious Lawsuit,” 7/24/25.

So c’mon, practitioners, bring out your best and contend mightily. Your correspondent awaits.

If Justice Oliver Wendell Holmes, Jr., was the Yankee from Olympus, then Judge Elizabeth A. (“Tex”) Copeland is the Texan from the Temple, as she does the 1 Kings 3:16-28 number again on FBA St. Clair Property, LLC, Legacy Springs Development, LLC, Tax Matters Partner, Docket No. 17085-21, filed 9/8/25.

As she turned aside the C-Clairs’ objection to the Section 170(e) wildcard, so with the Legacy Springers’ objection; this case is stiped to follow C-Clair, so is bifurcated. Trial of Part Deux, which will feature Section 170(e), comes next year, with plenty of time for discovery.

As for bifurcation, while Joseph R. Willis & Guntas Matharu-Willis, Docket No. 20169-24S, filed 9/8/25 were headed for a single-track trial, Guntas’ motion to amend petition asking the Court to preserve petitioner’s recently-filed claim for relief pursuant to I.R.C. section 6015 caused STJ Jennifer E. (“Publius”) Siegel to ask Guntas and Joe to tell her if they want to bifurcate counsel.

“… we note that petitioners share a mailing address, and that practitioner PS has entered an appearance on behalf of both of them–an apparent conflict of interest.” Order, at p. 1. (Name omitted).

STJ Publius Siegel reminds PS that USTCPs are subject to Rule 24(g)(1), and therefore needs informed written consent from both Joe and Guntas to waive the obvious conflict of interest. Failing which, PS must bow out of one.

Guntas can lodge her proposed amendment, meantime both she and Joe need to bukh on the conflict and what IRS. thinks about it. And mail in their replies.

 Nizamettin Baykara, Docket No. 9874-25, filed 9/5/25, is fighting over his 2024 1040-SR. I filed one of those. They’re for senior citizens, old folks. I doubt too many of the are familiar with O’Rourke v. United States, 587 F.3d 537 (2nd Cir. 2009), quoting Olsen v. Helvering, 88 F.2d 650, 651 (2d Cir. 1937). Nevertheless, Ch J Patrick J. (“Scholar Pat”) Urda tosses Nizamettin’s petition because none of the papers IRS sent him is a SND.

O’Rourke is just one of many cases that state substantially as follows: “‘Although the Code does not prescribe the appropriate content of a notice of deficiency, at a minimum it must identify the taxpayer, indicate that the Commissioner has made a determination of deficiency, and specify the taxable year and amount of the deficiency.’  Andrew Crispo Gallery, Inc. v. Comm’r, 16 F.3d 1336, 1340 (2d Cir.1994). The copy of the notice produced by the IRS in this case does all those things, even though half of the first page and the entire second page are missing.” (Footnote omitted, but it says that current SNDs need to include TAS notice and cutoff date when taxpayer must petition.)

Interesting, on the last point I have never seen IRS or any Tax Court judge or STJ deny that a SND is invalid because it did not have either the TAS notice (whether within the body of the SND or separately) or the Section 6213(a) petition cutoff date. The latter is most peculiar, given the inordinate stress Tax Court has placed on the jurisdictional function of Section 6213(a) in the face of Boechler. The 90-150 day cutoffs are immutable. See Hallmark Res. Collective.

Btw, the Olsen case above referred to and cited in O’Rourke says: “[T]he notice is only to advise the person who is to pay the deficiency that the Commissioner means to assess him;  anything that does this unequivocally is good enough․ [M]istakes in the notice which do not frustrate its purpose, are negligible.”  Olsen v. Helvering, 88 F.2d 650, 651 (2d Cir.1937).” (Footnote omitted.)

OK, so Ch J Patrick J. (“Scholar Pat”) Urda says not one of the mass of documents Nizamettin submitted with his petition and again in reply to IRS’ motion to toss for want of a SND is a SND.

Taishoff says, first, how is Nizamettin or anyone not a tax pro to know what is or is not a SND, except by petitioning everything they get and waiting for Ch J Scholar Pat to tell them? Second, is either the TAS notice or the petition cutoff date a jurisdictional requirement for a SND? Congress apparently thought so. But IRS never raised that argument, or at least not loudly enough for Tax Court to rule, when claiming one of their billets doux wasn’t a SND. Finally, how long must we wait for IRS to promulgate a standard form of SND and issue same, so that there is no mistaking what is or is not a SND?