Judge Emin (“Eminent”) Toro heeds the plea of Sandra M. Conard, Docket 27571-10, filed 4/8/20, in the words of Jimmy Webb, as sung by Glenn Campbell.

Y’all will recall that Sandra got tagged with the 10% Section 72 early withdrawal whatever-it-is a month ago. No? The see my blogpost ”Rational Basis,” 3/10/20.

But this is not about that. Judge Eminent then slugged Sandra for the whole deficiency plus chops. Now Sandra claims she has a NOL carryback that would erase a lot of the deficiency.

And after a couple phoneathons (hi, Judge Holmes) wherein IRS supports Sandra’s plea, Judge Eminent vacates and sends the parties off to a Rule 155 beancount.

“The disposition of a motion under Rule 162 to vacate a decision rests within the Court’s discretion. Such motions are generally granted only upon a showing of unusual circumstances or substantial error, e.g., mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, mistake, or other reason justifying relief. See, e.g., Rule1(a); Fed.R.Civ.P. 60(b); Brannon’s of Shawnee, Inc. v. Commissioner, 69 T.C. 999 (1978). After considering the parties’ arguments, Ms. Conard’s status as a self-represented taxpayer, and the record before the Court, we conclude that unusual circumstances justify vacating our March 10, 2020, Decision” Order, at p. 2..

Note there are two (count ‘em, two) orders of even date and even docket number. One vacates, the other amends.

Sorry to play the spoiler, but shouldn’t the motion be one to revise, not vacate? How can you amend an order that was vacated and set aside?

Must be the stress of the lockdown sequester. I think we all need a small vacation.

No, this is not a recipe for cleaning up Corona. Today we have Judge Goeke sticking Timothy J. Lewis, 154 T. C. 8, filed 4/8/20, for $15K out of the $222K whistleblower award he got, or 6.9%,  per sequestration formula.

IRS claims Tax Court has no jurisdiction to decide if an award should be subject to the 2011 Budget Control Act, as amended.

“Under section 7623(b)(4) we have jurisdiction to review the WBO’s determinations of whistleblower awards. The sequestration of petitioner’s award reduces the amount of the award. Our jurisdiction to review the WBO’s award determinations includes jurisdiction to review whether the WBO considered an inappropriate factor in making its award determination. Petitioner argues that the sequestration is an inappropriate factor. While respondent argues that the WBO merely followed the OMB’s guidance on the budget sequestration provisions, section 7623 confers on the WBO the sole statutory authority to determine whether a whistleblower is entitled to an award and, if so, the amount of the award. We are required to review the WBO’s determinations, including whether it properly exercised its discretion to follow any guidance given by the OMB and whether it appropriately applied the sequestration provisions. Accordingly, our jurisdiction under section 7623(b)(4) once invoked includes deciding whether the WBO properly applied the sequestration provisions to petitioner’s whistleblower award.” 154 T. C. 8, at pp. 22-23 (Footnote omitted).

Tim’s claim that the whistleblower money is a separate fund is a nonstarter, as collected proceeds are measuring tools for computing awards, not funding sources. So is the claim that the factors for determining the amount of the award are exclusive. See Reg. 301.7623-4(b). And whistleblower awards are not statutorily exempt from sequestration. So no abuse of discretion in sequestering.

Tim argues that target shifted treatment for the year after the audit sparked by Tim’s blowing, but Whistleblower 16158-14W puts paid to that. See my blogpost “Straightforward, Expansive, Useless,” 4/17/17.

There’s also argy-bargy about unused unified gift-estate credit when Target H died, but Target W will pay tax per Section 2204(a) on the credit shelter testamentary trust Target H set up, so no more proceeds for Tim to claim.

He may be quirky, but when it comes to “such rarefied heights of pure mathematics that it is said that there was no man in the scientific press capable of criticizing it,” Judge Mark V. Holmes is in his element.

And he combines his mathematics with a tale worthy of John Steinbeck in Howard V. Moore, Donor, a.k.a. Estate of Howard V. Moore, Deceased, Virgil L. Moore, Executor and Trustee, 2020 T. C. Memo. 40, filed 4/7/20.

The late Howard started in an AZ hardscrbble “…home thatched out of arrowweed, not that different from the precolonial homes of the local Native Americans.” 2020 T.C. Memo. 40, at p. 3. But he made his career as a leveler, one who made every valley exalted and the rough places plain, so the AZ farmers could irrigate, and got paid in land because cash money was nonexistent. By the time Howard met The Great Leveler, his net worth was in the millions, and his trusty attorney had put together five (count ‘em, five) trusts and a FLP, with loans and paperwork to hold together his dysfunctional family. Read Judge Holmes’ prose, and imagine what Steinbeck or O’Neill could do with this.

Howbeit, Howard’s whole aim was to save taxes, which torpedoes the whole shebang. No business purpose, no assets to preserve and manage, no creditors to swoop down and plunder, charitable contributions to be computed only after IRS audits the estate, and Howard sold the farm for $16 million at arms’-length, but lived there and kept managing until he died, about a year after all this estate planning stuff (which he did while in a hospice, and checked himself out to go home).

Judge Holmes’ aim seems to be to mix-and-match Sections 2033, 2035, 2036, 2043, and 2051, until he reduces all the gyrations to an equation. “The final equation: ((Either $5.3 million or $8.5 million + (.2 * value of farm at date of death)) – (money that left the estate between the time of the sale and Moore’s death)) + ((value of farm at date of death) – ((either $5.3 million or $8.5 million) + (.2 * value of farm at date of death))). We can then simplify the equation to: (The value of the farm at date of death) – (money that left the estate between the time of the sale and date of death).” 2020 T. C. Memo. 40, at p. 55.

For you who are mathematicians, or old enough to remember the Greyhound Bus slogan (“getting there is half the fun”), start at p. 42 and read on. As for me, “(W)hen the proofs, the figures, were ranged in columns before me, When I was shown the charts and diagrams, to add, divide, and measure…how soon unaccountable I became tired,” as a much finer writer than I put it.

And, as the headline of this blogpost says, Judge Holmes sends the parties off to the Rule 155 beancount with the understatement of the decade. “We have no doubt that computations will be difficult.” 2020 T. C. Memo. 40, at p. 63.

Roderick M. Campbell and C. Sandra Campbell, 2020 T. C. Memo. 41, filed 4/7/20, needed a big write-off in Year One to offset big gain in Year Two, so they took the advice of their trusty CPA, who steered them into a buy-wholesale-donate-retail deal run by another client (hereinafter “Z”) of said trusty CPA. Hence my allusion to Jerome Weidman’s 1962 vehicle that lifted Barbra Streisand to stardom.

Rod and CSan bought 3,432 eyeglass frames from Z for $50K, got an appraisal (whose defects Judge Ashford carefully exposes; see infra, as my high-priced colleagues would say from their Hamptons lockdowns), and donated same to Lions in Sight, a genuine 501(c)(3) whose motives were to provide eyeglasses for the impoverished but whose CWA (Contemporaneous Written Approval) fell as far short as IRS’ Section 6751(b) Boss Hoss sign-off (see infra). Only after the one-year hold, Rod and CSan claimed deduction of $225K.

The problem is the valuation. The initial appraiser appraised Z’s entire 340,000 eyeglass frames. Rod and CSan only bought 3,432 thereof. Rod’s and CSan’s were undifferentiated. The aim of Reg. Section 1.170A-13(c)(2)(i)(A) is to require an appraisal of the exact goods that Rod and CSan donated. But there was no way of telling from the appraisal of the whole what the part was worth, as there were different brands with different values, and no statement of which ones were in Rod’s and CSan’s bundle.

“Tellingly, the 349,629 eyeglass frames that [initial appraiser] valued varied in price between $37 and $80, yet petitioners could not discern whether Mr. Campbell’s 3,432 frames are from the low end of the price spectrum, the high end, or some varying combination. Indeed, the [post-contribution] appraisal highlights the primary defect of the [initial] appraisal. In the [post-contribution] appraisal, 39,709 of the 349,629 eyeglass frames were assigned a value of zero as of [initial appraisal date]. Might Mr. Campbell’s 3,432 frames been a part of the 39,709 frames?” 2020 T. C. Memo. 41, at p. 20.

“Tellingly?” Inventive, but a wee bit neologismical and Tom Swiftian.

And the argument that Rod and CSan had an undivided interest in the whole falls short. “…the offering memorandum does not reflect that prospective buyers will have a fractional interest; instead it recites that prospective buyers will have the opportunity to purchase one or more allotments of 3,432 eyeglass frames from a collection of 171,600 frames in [Z’s] possession. The bill of sale between Mr. Campbell and [Z] also does not memorialize the purchase of a fractional interest and it references an itemized inventory or merchandise list (although such a list is not attached to the bill of sale). Moreover, if Mr. Campbell indeed had a fractional interest he would not have had the unfettered right as the offering memorandum provided to (1) inspect or remove his frames and (2) donate his frames before the one-year holding period even to another charitable organization besides Lions in Sight.” 2020 T. C. Memo. 41, at pp. 21-22.

“We also agree with respondent…that the [initial] appraisal fails to provide ‘[a] description of the property in sufficient detail for a person who is not generally familiar with the type of property to ascertain that the property that was appraised is the property that was (or will be) contributed’. Sec. 1.170A-13(c)(3)(ii)(A), Income Tax Regs.” 2020 T. C. Memo. 41, at p. 22.

And substantial compliance doesn’t help, because IRS needs to know that the exact property being appraised is identical to what is being donated. That’s essential.

The Lions, pure of heart and clear of sight, didn’t say that no goods or services were provided. So the CWA is not a CYA.

Finally, Rod’s and CSan’s trusty CPA also participated in the deal that Z, also a client of trusty CPA, put together; trusty CPA wrote the offering memo, therefore is a promoter, so no good faith reliance.

But IRS stumbles at the last fence. The CPAF (Civil Penalty Approval Form) was too hastily prepared. “The Civil Penalty Approval Form, although properly signed and dated before the issuance of the notice of deficiency (the first formal communication of penalties to petitioners), does not show separate approval for the section 6662(a) and (h) penalties. The one-page form fails to state with any degree of specificity which penalties should be asserted (and are approved); indeed, all that the form states is that a ‘[p]enalty will be asserted with the … [y]ear.’ Section 6751(b)(1) would be meaningless if written supervisory approval of an unspecified penalty was sufficient; examining agents would be free to assert any type of penalty after written supervisory approval was given, an action that section 6751(b)(1) was designed to prevent. Consequently, since respondent has not proffered any other evidence that he complied with the procedural requirements of section 6751(b), petitioners are not liable for the section 6662(a) and (h) accuracy-related penalties.” 2020 T. C. Memo. 41, at pp. 32-33.

CPAFs can’t be issued on a wholesale basis either.

Aviators are not the only ones who need to run the checklist, no matter how familiar they are with the procedures, NOTAMs, FAA requirements, NTSB admonitions, operating manuals, and 14 CFR, applicable to their aircraft and intended use thereof.

Judge Courtney D (“CD”) Jones not only rightly abominates the sloppy and timid substitute for thought locution “and/or,” but makes sure that the Ogden Sunseteers get the Form 211 info to the classifiers (the operating types who scope the stuff out to separate the wheat from the cliché), and read and heed the classifiers’ adjurations. And the best way to do it is to run the checklist.

Here’s Mandy Mobley Li, Docket No. 5070-19W, filed 4/6/20, whose petition fails on summary J in a designated hitter from Judge CD.

Mandy Mobley claims target “…had filed false claims of rental income, dependent children, alimony paid, and mortgage interest” for two (count ‘em, two) tax years. Order, at p. 1.

Please pardon an old-time beaten-down, beaten-up, single-shingle “general practitioner with very limited experience and mediocre qualifications,” but just perhaps maybe so this is a family law thing gone wrong. Just sayin’, not fur nuthin’.

Howbeit, the Sunseteer on the case flipped it over to the classifier, who sent it back with an endorsement “checked the 211 against the returns for years at issue, no law violation and claims speculative.” Best of all, “(T)he classifier documented her findings and conclusions on a classification checklist, including her recommendation that the WBO reject petitioner’s claim.” Order, at p. 2.

The Sunseteer accepted the classifier’s statements, and sent off the final rejection, so labeled to start the thirty-day clock for petitioning, and forestall epistolary volleying.

Again Judge CD joins in rebuking the bureaucratic responsibility-ducking language of the form shootdown letter. ” The WBO’s form letter contained the same ‘and/or’ conjunction that led to a lack of clarity in Lacey v. Commissioner, 153 T.C. __, __ (slip op. at 33) (Nov. 25, 2019). In this case, the record establishes that all of the reasons stated in the letter are justified. So the general lack of clarity attendant to the “and/or” conjunction is inconsequential here. But the Court continues to be concerned that, in a closer case, this form text may create confusion when we review a summary rejection of a whistleblower claim. See Alber v. Commissioner, T.C. Memo. 2020-20, at *8-9 n.5.” Order, at p. 2, footnote 5.

I’ve blogged both those cases. And Mandy Mobley’s complaint reminds me just a trifle of Christian Bernd Alber. See my blogpost “We Don’t Need Lacey,”1/30/20, which links to my original blogpost about Lacey.

Howbeit, the Ogden Sunseteers made sure the classifier ran the checklist and checked off the Magnificent Seven “(‘contain[s] specific * * * information’; ‘contain[s] * * * credible information’; provides “information that the whistleblower believes will lead to collected [tax] proceeds’; reports’”fail[ure] to comply with the internal revenue laws’; ‘identif[ies] the person(s) believed to have failed to comply with the internal revenue laws’; ‘provide[s] substantive information, including all available documentation’; and does not ‘provide speculative information.’” Order, at p. 4.

So clearly the Ogden Sunseteer eyeballed the classifier’s take, decided not to ship the matter on to Examination, performing thereby the evaluative process and making a clean administrative record.

Summary J for IRS.

Belongs on a Bottle, Not An Alimony Payment

Family lawyers should have rejoiced as 2017 became 2018, as their obsolete and oft-copied boilerplate concerning expiry of alimony payments when a child reaches the age of 18 years could no longer torpedo a Section 215 deduction. Because there were no more until maybe 2026. But they forgot the Bard of Avon’s warning: “The evil men do lives after them.”

Here’s Timothy Clinton Biddle, 2020 T. C. Memo. 39, filed 4/6/20. In Tim’s case, the divorce decree separated alimony (then deductible) and child support (nondeductible) into two separate amounts. But neither that nor the amendment thereto removed the septic clause that alimony would continue to be payable: “…until the occurrence of one of the following events: (1) the youngest child’s 18th birthday, (2) the wife or husband’s death, (3) the wife’s remarriage at the five-year point or anytime thereafter, or (4) the wife becomes self-supporting.” 2020 T. C. Memo. 39, at p. 4.

Tim says he and ex-Mrs Tim never intended the 18th birthday cut off. Too bad, says Judge Vasquez. “In defining alimony section 71(b) does not list the parties’ intent as a factor. Thus, the Court cannot rely on the intent of the parties in determining whether a payment should be characterized as alimony for Federal income tax purposes; it must apply the explicit requirements listed under section 71(b). Therefore, petitioner’s argument that the parties intended that the designated alimony payments would continue indefinitely, regardless of the contingency relating to his youngest child’s 18th birthday, is unavailing. That the designated alimony payments were also subject to termination contingencies relating to petitioner’s ex-spouse does not change this result.” 2020 T. C. Memo. 39, at p. 8. (Citation omitted, but Judge Vasquez cites a case I blogged in my blogpost “The Phone Call,” 4/15/14.).

Creating separate pockets of dollars and labeling one “child support” and the other “alimony” doesn’t prevent Section 71(c)(2) from tearing off the labels and picking both pockets.

IRS magnanimously spares Tim, pro se, retired military, the Section 6662 chops.

Dear family lawyers, leave the 18 year olds in the drinks cabinet. And save a wee dram for me.

Looks like IRS is up to its old tricks, dropping the SNOD after the petition, and trying to knock out the valid petition by claiming it duplicates the untimely one, then dismissing the untimely one on lateness grounds. I’ve blogged this more than once before now, but the grandma of these is “Another Taishoff ‘Oh Please,’” 9/24/14.

Ch J Maurice B (“Mighty Mo”) Foley plays today’s version like the speedy third baseman who races to the bunt and nails the lead runner with a bullet throw (I remember Billy Cox of the old Brooklyn Dodgers making a similar play against the Yankees more than 60 years ago; holy canoli, what about the baseball season, with this COVID-19?).

Back to work. Here’s Steven Lindsey & Shannan Lindsey, filed 4/6/20, with two docket Nos., namely, viz., and two wit, 826-20 and 1396-20. The numbers matter.

Ch J Mighty Mo is on the case, with the numbers and dates firmly in mind. Do thou likewise.

“On January 13, 2020, petitioners filed a petition with the Court, at docket No. 826-20, challenging the notice of deficiency dated October 21, 2019, issued to them for taxable year 2017.The fling fee in that case was paid. On January 22, 2020,petitioners filed timely a second petition, at docket No. 1396-20, challenging the same notice of deficiency for 2017. The filing fee in that case was not paid. On April 3, 2020, respondent filed, at docket No. 1396-20, a Motion To Close on Ground of Duplication seeking to close that case as duplicative of the case at docket No. 826-20. In his motion to close respondent states that petitioners do not object to the granting of the motion.” Order, at p.1.

As a docket search shows Steve & Shannan are pro sese, no surprise they didn’t pick up on the fact that IRS was torpedoing their valid petition and floating away their untimely one.

But Ch J Mighty Mo will have none of it. He tosses IRS’ motion to toss the timely for duplication, and tosses the untimely in its stead.

Even better, he credits the filing fee paid for the untimely to the surviving timely.

Does Ch J Mighty Mo read this my blog? I suggested this very thing in my blogpost “Fake Out – Part Deux,” 6/23/15.

That “quirky” jurist (see the Wall Street Journal, 6/1/18), Judge Mark V. Holmes, may be debarred from going to Buffalo just now, but he’s willing to hold a phoneathon with IRS and The Cannon Corporation and Subsidiaries, Docket No. 12466-16, filed 4/3/20.

I’m sure you remember the Cannoneers and their rather expansive reading of Section 179D. What, no? Then review my blogpost “No Method, No Madness,” 6/5/18. Now you recall that you read it here first.

OK, IRS got partial summary J on the deficiency. But now IRS wants chops, and the Cannoneers claim they acted reasonably and in good faith, so no chops. And that’s a question of fact. But we have a couple steps (this is Judge Holmes, remember) before we get there.

To begin with, corporations are not people for Section 7491(c) BoP. “At trial, this would mean that the burden of production would remain on Cannon, which is a corporation. But when the Commissioner moves for summary judgment, he must show that ‘there is no genuine dispute as to any material fact and that a decision may be rendered as a matter of law.’” Order, at p. 2 (Citations and footnote omitted, but (spoiler alert) the footnote says the Cannoneers’ counsel doubtless will preserve this issue for the trial that will follow when the lights go on again all over the world.)

Judge Holmes, reveling in the massive silt-stir (more like a landslide) stirred up by Chai, Graev and Clay, notes that there is no required form which the Section 6751(b) Boss Hoss must take, nor even that the Boss Hoss need lay hoof to paper. The Boss Hoss sign-off must be in writing and from the Boss Hoss. But Clay says that has to come before Word One of penalty is breathed to the hapless taxpayer.

“There is no genuine dispute that MG was the revenue agent assigned to examine Cannon’s [year at issue] return. There is no genuine dispute that MG’s immediate supervisor was LH. There is also no genuine dispute that MG prepared a Form 5701 — titled Notice of Proposed Adjustment — and a Form 886-A — titled Explanation of Items — that proposed to disallow Cannon’s claim for taking an I.R.C. § 179D deduction it had earned in previous years on its [year at issue] return and to assert that Cannon owed a penalty under I.R.C. §6662(a).” Order, at p. 4. (Names omitted).

But what did LH do with MG’s productions?

IRS claims LH made some changes to MG’s draft (Oh H.G. Wells, thou should’st be living at this hour!), and e-mailed them back to him to revise accordingly and forward on. And this was before the Cannoneers first heard the P word.

OK, so what did the changes look like?

Ah no, says IRS, deliberative-process privilege. I.R.M. §35.4.6.3.3.1(1) says that is “a qualified privilege that protects from disclosure certain statements of advice, deliberation, and recommendation of governmental officials. In order to successfully claim the privilege, the respondent must show that a document is predecisional, i.e., ‘antecedent to the adoption of an agency policy,’ and deliberative, i.e., ‘a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal and policy matters.’” OK, people in government need to speak freely without worrying that what they say will be used against the agency in litigation.

“This assertion of the deliberative-process privilege may or may not be justified (Cannon hasn’t moved for in camera review or disclaimed any intent to object to its introduction at trial).

“But the Commissioner’s assertion of the privilege does prevent us from verifying that the changes LH recommended or the language that she possibly approved without change would qualify as supervisory approval.” Order, at p. 5.

“Without being able to see the Form 886-A draft, Cannon makes the reasonable point that this email might just cover editorial changes to MG’s draft without actually approving the penalty. It also makes the very good point that the Commissioner’s assertion of a predecisional privilege means that the drafts were just drafts, and not a final anything, much less the required decision or approval made by a supervisor. It may well be that LH made no actual decision to approve MG’s determination to assert the I.R.C. § 6662 penalty.” Order, at p. 5. (Emphasis in original.)

No summary J on chops.

Judge Holmes calls this situation a Chaighoul, an unforeseen consequence of Graev extending Chai nationwide. And cannot help quoting himself.

“This roused a Chaighoul hitherto unseen and, indeed, whose existence had not even been predicted by theory. See Graev, 149 T.C. at 512-16 (Holmes, J., concurring).” Order, at p. 4. See my blogpost “Stir, Baby, Stir – That Silt,” 12/20/17.

Wouldn’t I just love to be in Jake’s Saloon on 23rd Street with Peter Reilly, CPA, Judge Holmes, Frantic Frankie Agostino, and a couple pitchers of Jake’s Ale, kicking this one around? At this point I’m so locked-down stir-crazy I’d even buy.

.

While not leading in the lame excuse stakes, the sentence at the head hereof is coming up three wide at the head of the stretch. I have heretofore stated (although some might say I have obsessively stated) that the Entry of Appearance (Form 7 on your scorecard) ignores the realities of law practice.

There are law firms. There have been law firms for centuries. These have multiple lawyers, either as partners, shareholders, counsel, associates, or hangers-on however denominated. While one of these may be assigned to a case and remain with it from intake to file-close, it happens more often than not that one lawyer needs another to cover a court appearance, a deposition, a settlement negotiation, or any of the hundred-and-one day to days in the life of a lawyer. Surprisingly, lawyers are human: some need parental leave; some fall ill. Some even take vacations.

But there is no Entry of Appearance for law firms. I understand that only attorneys admitted to USTC should be permitted to file Entry of Appearance (with limited exceptions; see my blogpost “Battlefield Commission,” 1/14/19). I also know that Rule 201(f) does the Genesis 3:24 number on law firms.

All that said, take a gander at Elliott Family Holdings, LLC., Justin C. Elliott, Tax Matters Partner, Per Klixbull, Brigg Bloomquist, and M. L. Lambert, Partners Other Than The Tax (sic; should be “Matters Partner”) , et al, Docket No. 1062-19, filed 4/3/20. And note the dates: they are significant.

“The petition in this case was filed on January 28, 2019, by counsel S as counsel for petitioners. On April 1, 2020, C electronically filed a Substitution of Counsel for counsels C and T. The substitution of counsel is improper because it is seeking to have S enter an appearance as counsel for petitioners in this case. The Practitioners’ Guide to Electronic Case Access and Filing (a copy of which guide is posted in the eAccess section of the Court’s website at http://www.ustaxcourt.gov) states, in pertinent part:

“An entry of appearance, substitution of counsel * * * may be signed and filed by only one practitioner–the practitioner who is eFiling the document. The system will not add additional practitioners who sign the document to the case. Each practitioner seeking to gain access to a case must eFile his or her own separate document.” Order, at p. 1. (Names omitted).

Maybe so a few things changed between January 28 and April 1.

The Elliott Family is represented by a Chicago boutique that does estates and taxes. There are nine (count ‘em, nine) lawyers listed on their website. I carefully avoid stating that all the partners listed thereon are men, and all the associates are women. At all events, more than one of the attorneys mentioned in the order is admitted in USTC. Moreover, to the best of my knowledge, but without having made an exhaustive and independent investigation and review, USTC is the only court in the Federal system with this requirement.

I do not mention the Judge who wrote the order. So to do would sound like a cheap shot, and it wasn’t that Judge who made up the Rule. And I understand why a Judge wouldn’t make a suggestion in an order that the Rule might be changed; that’s for a quiet moment in the Judges’ cafeteria in the Glasshouse, over a cup coffee and a piece pie (hi, Judge Holmes), with colleagues, when the world is free.

In the meantime, while enforced leisure is upon us, let us remember that thoughts are free. And maybe so it’s time for some more Octavia Rules. Permanently.

Seems like just yesterday (but it was actually the day before), we saw counsel for Adrian D. Smith & Nancy W. Smith, et al., Docket No. 13382-17, filed 4/3/20, try to wild-card in their expert’s report as an attachment to a status report. Judge Gale let it in, as the Glasshouse in the City on Lockdown was locked down.

IRS’ counsel, Jonathan E. (“Jeb”) Behrens, Esq., shows us (and incidentally Ad & Nan’s counsel) the right way to do it, when Tax Court is doing the Greta Garbo number.

Judge Gale: “…respondent filed a Motion for Leave to File Report, and lodged therewith the Report of his proffered expert, JR, referred to in his Report filed March 25, 2020.” Order, at p. 1. (Name omitted).

Judge Gale grants the motion, does some recharacterizing (how could a Tax Court judge refuse a chance to recharacterize?), and files the report.

Except of course that the report isn’t evidence until Judge Gale finds JR to be qualified.

So make a motion if you’re locked down and The Glasshouse is locked up. And don’t worry if you get the title of your papers wrong. Tax Court judges are disciples of H. G. Wells: “There is no passion, neither love nor hate, equal to the passion for altering someone else’s draft.”