That Obliging Jurist, Judge David Gustafson, is at it again, instructing taxpayers and their counsel, and admonishing IRS and its counsel, in a sermonette about prejudice (but the Pride of Steventon, who inspired my title, has nothing on Judge Gustafson when it comes to discussing prejudice).

Here’s Murfam Enterprises LLC, Wendell Murphy, Jr., Tax Matters Partner, et al., Docket No. 8039-16, filed 6/27/18. If this sounds familiar, doubtless it’s because I blogged another iteration thereof only the day before yesterday. See my blogpost Mise En Place, 6/25/18. Then, Judge Gustafson was a trifle testy concerning the parties’ epistolary jousting on the eve of trial.

Today the Murfams are trying to get in one (count it, only one) “Amendment to Petitions,” which recites what the Murfams want to change in their three (count ‘em, three) consolidated cases. And they don’t lodge the three amendments, which would presumably incorporate what the aforesaid document recites.

Ordinarily, seeking amendment without lodging text thereof draws a rebuke, but Judge Gustafson, aware that trial is coming apace, lets it go.

“Murfam’s motion explains why it believes the Commissioner would not be prejudiced by the proposed amendments. The explanation is credible, and we see no obvious prejudice. However, the motion advises that ‘Respondent objects to the granting of this Motion.’ We will therefore order the Commissioner to file a response to the motion for leave. If that response is indeed an objection, then it should explain why and how the Commissioner would be prejudiced by the amendments. Of course, ‘prejudice’ for this purpose does not mean mere disadvantage but rather an unfair disadvantage arising from the delayed filing. A party alleging prejudice must be able to explain what it would have done differently heretofore if the amendment had been made earlier (or if the newly proposed contentions had been included in the original petition). Of course, consenting to the filing of an amended pleading is not a concession of the merits of that pleading.

“(If we do grant the motion for leave, then we will not order the filing of the lodged ‘Amendment to Petitions’ but will instead strike that document and order Murfam to file, in each of the three cases, a conformed amended petition for that case that reflects the amendments that Murfam requests leave to make.)” Order, at pp. 1-2. (Emphasis by the Court). And presumably IRS gets a chance to amend its answers.

In short, IRS, this is a chance for could’a would’a should’a.

But trial looms, so IRS gets until Monday to object, and if IRS does, let them say how to cure the prejudicial effect. The Murfams also get a tight timetable to get in the amended petitions, if allowed, and IRS gets same to answer.

Prejudice means real prejudice.

Val Lanes Recreation Center Corporation, 2018 T. C. Memo. 92, filed 6/26/18, concerns Sub S corporate earnings passing through to an employee stock ownership trust {ESOT]. Because this is fact-bound, I’m skipping that part of Judge Paris’ prose.

IRS yanked their approval of Val’s ESOT because of the passthrough Sub S income being deemed a contribution from the owner-beneficiary and exceeding applicable limits, failure to amend timely (except it did, finds Judge Paris, not being bound by the record rule and holding a hearing, which establishes the amendment was timely made), and that Mr T, Val’s trusty CPA, wasn’t a qualified appraiser to value the Sub S stock when contributed, and therefore flunked Section 401(a)(28)(C), which in turn incorporates Section 170(a)(1) regs.

I focus today on the last point.

Mr T had been up to Tax Court before on a different ESOT, and been shot down. But in that previous case: “…the Court first found that the administrative record contained insufficient evidence as to Mr. T’s background, education, and experience in valuing the type of business at issue in the case even before stating that Mr. T was not independent. The Court…therefore, did not analyze section 1.170A-13(c)(iv), Income Tax Regs., excluding certain persons as ‘qualified appraisers’, nor did it ultimately rely on its statement regarding Mr. T’s involvement in the plan and trust.” 2018 T. C. Memo. 92, at p. 22 (Name omitted).

This time, with the benefit of experience, Mr T lays out his qualifications in extenso.

“In the…protest to respondent’s proposed revocation of the FDL [Favorable Determination Letter, IRS’ approval of Val’s ESOT], petitioner explained Mr. T’s background and education. Petitioner also specified that Mr. T taught courses on the appraisal of closely held corporations and performed ‘literally thousands of appraisals of all sorts.’ During the hearing petitioner introduced evidence that Mr. T annually performed approximately 40 appraisals of ESOT-owned closely held business stock. The Court finds that Mr. T did have the appropriate background, education, and experience to value petitioner’s stock….” 2018 T. C. Memo.92, at pp. 21-22.

And although Mr T didn’t advertise, his firm’s Yellow Pages listing (what an old case this is!) did say they did estate and business appraisals. That’s enough “holding out” for Judge Paris.

Mr T did do all the returns, set up corporations and for a time was their registered agent with the State. So is he “independent”?

He is for Judge Paris.

“Here, the Court reviews the additional exhibits and testimony petitioner introduced in this case and finds that Mr. T was qualified to value petitioner’s stock…. Therefore, the Court must consider whether section 1.170A-13(c)(iv), Income Tax Regs., excludes persons beyond those specifically listed and finds that it does not. Section 401(a)(28)(C) provides that the term ‘independent appraiser’ is similar to the requirements of the regulations for section 170(a)(1), which in turn define ‘qualified appraiser’. Section 1.170A-13(c)(iv), Income Tax Regs., excludes certain persons from being appraisers because of their inherent lack of independence. Petitioner has established that Mr. T was not disqualified under any of the exclusions.” 2018 T. C. Memo. 92, at p. 23.

Takeaway- Get those credentials into evidence, and get them into the administrative record.

Fans of the late and much lamented Anthony Bourdain are fully familiar with the abbreviated version of the title to this blogpost, meeze. For those who aren’t, it means everything the line chef needs, laid out and set up so the line chef can prepare whatever meal is wanted with the fewest possible motions.

Today we have two for the Tax Court practitioner, one from that Obliging Jurist Judge David Gustafson (Murfam Enterprises LLC,  Wendell Murphy, Jr., Tax Matters Partner, et al., Docket No. 8039-16, filed 6/25/18),  and the other from ex-Ch J Michael B (“Iron Mike”) Thornton (Estate of Virginia M. Lococo, Deceased, Ellen Rene Jarros and Mary Jean Forsyth, Co-Trustees, Docket No. 20996-17, filed 6/25/18).

Judge Gustafson has the battle of the stips. IRS wants a Rule 91(a)(1) basic, just returns, forms, documents, SNODs and dramatis personæ; Murfam ripostes that this is incomplete, and Rule 91(a) mandates a stip covering all matters not privileged that bear on the case, whether fact, opinion or application of law to fact. So Murfam wants to prepare its own all-embracing stip and give that to IRS.

Judge Gustafson, normally obliging to a fault, detects a wee bit of stalling here.

“…we warn the parties that we and they have limited time between now and trial, that we have limited curiosity about the details of their correspondence, and that neither the Court nor the parties should allow themselves to be distracted from the actual merits of this case by fruitless argument about and adjudication of the parties’ correspondence.” Order, at p. 2.

In a complex case (and apparently Murfam is one such) there are sometimes multiple stips, as the parties horsetrade (Judge Gustafson’s word) and work things out. Sometimes there is gameplaying, with each side sending the other a draft stip replete with minefields to provoke endless haggling.

This being Judge Gustafson, Murfam can explain. “However, no such explanation could have as good an effect as the prompt filing of a stipulation of the basic facts of this case.” Order, at p. 3.

Ex-Ch J Iron Mike has a four-point plan that should be in every Tax Court practitioner’s checklist file.

First, lay out your take on the facts and the law, both with any subsidiary points, and sufficiently detailed so the judge can decide the entire case on those bases.

Second, “A clear, complete, and concise exposition of each party’s position and the theory underlying that position with respect to each of the issues.” Order, at p. 1. Also state in narrative form what you expect to prove on the trial.

Third, will expert testimony be involved? If so, state the nature of such testimony and what questions will be put to the expert.

Fourth, status of preparation of stip of facts and status of trial preparation.

Ex-Ch J Iron Mike will require memos from both sides on these points. They will control admissibility of evidence and what positions parties may take at trial. These memos are the contrapositive of the advertising slogan of Yellow Pages of old: “If it’s not in here, it’s not out there.”

Most of this is commonsense, but like common sense, it’s very uncommon.

It’s Friday afternoon, I’m ready to go home to recover from the overwhelming hospitality, love and affection of my nearest and dearest, and no opinions. Just one designated hitter, STJ Panuthos tossing a hard-luck petitioner who did nothing when he had a chance; maybe the 14-day quick-kick rule needs revision.

So a hasty browse through today’s orders brought back to mind the Berlin adventures of Jonathan Zuhovitzky & Esther Zuhovitzky, Docket No. 3489-16, filed 6/22/18.

You remember Jon and Esther, who wanted to do reality TV from the old Prussian capital. No? Then check out my blogpost “Come From Away – Part Deux,” 11/17/17.

Jon’s back has gotten no better, his and Esther’s case is still on for trial, and the Hague Evidence Convention is still the elephant in the corner, although Judge Vasquez was looking favorably at Jon’s & Esther’s TV testimony.

So it’s time for the DOJ to enter the fray, and whom does DOJ send but a further sequel to Mark Twain’s classic and two (count ‘em, two) sequels from the master’s hand?

Judge Vasquez’ll tell you. And ya can’t make this stuff up.

“…Thomas J. Sawyer of the U.S. Department of Justice (Justice Department) filed a Motion For Admission of Counsel Pro Hac Vice, a Motion For Leave to File in Paper Form, and a Statement of Interest With Respect to the Court’s Order of November 15, 2017, Permitting Contemporaneous Trial Testimony From Berlin, Germany. Mr. Sawyer states that the parties in this action do not object to his motions for admission of counsel pro hac vice and for leave to file in paper form. [Note- I think you meant pro haec vice, Judge.]

“Writing on behalf of the Justice Department in the Statement of Interest, Mr. Sawyer asks the Court to reconsider our November 15, 2017, Order in which we granted petitioners’ Motion to Permit Witness Testimony of Jonathan Zuhovitzky and Esther Zuhovitzky by Contemporaneous Transmission from a Different Location.” Order, at p. 1.

Tom Sawyer Abroad…and Tax Attorney. Sam Clemens, thou should’st be living at this hour.

IRS mishandled the additions to tax for James R. Brown and Opal Freeman, 2018 T. C. Memo. 91, filed 6/21/18, but tries to amend its answer one month before trial.

Jim & Opal didn’t file for two years, got audited and filed during audit. Their returns got accepted, but they didn’t pay. So the only issues are the additions: failure to pay, failure to timely file, and failure to make estimated tax payments.

After negotiation between Jim’s & Opal’s lawyer and IRS counsel, Appeals issued Form 5278 Statement – Income Tax Changes, supposedly summing up the deal to which Jim’s & Opal’s attorney and IRS’ counsel supposedly agreed.

Except they didn’t, and it didn’t, so Jim’s & Opal’s lawyer moved for entry of decision; IRS moved for leave to amend and unscramble the additions.

Judge Ashford: “An agreement to settle a case before this Court is a contract; accordingly, we apply general principles of contract law when called on to resolve whether the litigants have reached a settlement. In a case pending before this Court, a settlement agreement may be reached by correspondence, in the absence of a formal document such as a closing agreement under section 7121. A prerequisite to the formation of an agreement is that there be a ‘meeting of the minds’, i.e., an objective manifestation of mutual assent to its essential terms. This principle applies even where an essential term is one over which the Court lacks jurisdiction. The determination of whether there was a meeting of the minds sufficient to constitute a contract is one of fact.

“On the basis of the evidence before us, we find that the parties did not reach a settlement because there was never a meeting of the minds as to several of its essential terms–the additions to tax attributable to petitioners’ reported underpayments of tax…under sections 6651(a)(1) and (2) and 6654. Indeed, petitioners acknowledge this disagreement in their motion, asking us on the one hand to enter a decision adjudicating exclusively those matters on which the parties agree (i.e., the…deficiencies and the additions to tax under sections 6651(a)(1) and 6654 attributable to those deficiencies) and asserting on the other hand that the matters on which they disagree are outside the scope of our jurisdiction. The parties, however, must agree on both the issues to be settled and the resolution of those issues; we will not enter a decision on some issues for which resolutions are agreed if the parties do not agree that those are all of the issues that they seek to resolve. Accordingly, we find that the parties did not reach a settlement agreement, and we will deny petitioners’ motion.” 2018 T. C. Memo. 91, at pp. 11-12 (Citations and footnote omitted).

Well, how about treating their parties’ arguments and papers as a motion for partial summary J upon what they do agree? Unless, of course, Judge Ashford wants to keep the pressure on the parties to reach a universal settlement.

Anyway, Tax Court has jurisdiction over additions to tax independent of a determined deficiency. The 1986 amendment to Section 6214(a) vests jurisdiction in Tax Court. So Jim & Opal are out on jurisdiction.

So Tax Court can rule on Section 6651(a)(2) failure to pay where there is jurisdiction to redetermine a deficiency even when Tax Court doesn’t redetermine anything.

As for surprise and prejudice, “There is nothing in the record that would support a finding that petitioners will suffer unfair surprise, disadvantage, or prejudice as a result of our granting respondent’s motion. Indeed, petitioners have been aware of the section 6651(a)(2) additions to tax asserted against them… since well before respondent’s filing of his motion.” 2018 T. C. Memo. 91, at p. 20.

And the back-and-forth between Jim’s & Opal’s counsel and the AO showed Jim & Opal knew this would be an issue. IRS was only “…seeking to amend his answer ‘as a formality and in order to clarify the record’. 2018 T. C. Memo. 91, at p. 21.

And the case hasn’t yet been tried, so Jim’s & Opal’s attorney can marshal whatever evidence they need to prove reasonable cause to dodge the reformulated additions.

I’ve often said lawyers can’t add, so watch those additions.

That’s Judge Cohen; she doesn’t like cognomens, and doesn’t like petitioners who fiddle with OIC forms and expect the SO assigned to their CDP to edit their Forms 656 (with no financial information attached).

And this is the third time around for Craig K. Potts & Kristen H. Potts, Docket No. 9307-17L, filed 6/20/18.

The backstory is found in 2017 T. C. Memo. 228, filed 11/20/17, which I didn’t blog at the time. It was a Form 870-AD waiver for one year, and a chance to contest deficiency for the others that ended with another T. C. Memo. That Craig & Kristen has six (count ‘em, six) OICs hanging about in 2017 didn’t impress the SO, or Judge Albert G (“Scholar Al”) Lauber either.

OK, so tax due is off the table.

Craig & Kristen has an OIC pending when they had their latest CDP. The SO said he couldn’t deal with the OIC, but checked out everything else, and affirmed.

“Essentially petitioners argue that it was an abuse of discretion for the SO not to delay action while petitioners’ missteps–whether intentional and strategic or inadvertent–were straightened out. Those missteps were altering the prescribed form for submitting an offer-in-compromise, submitting various altered forms to different offices of the IRS, attempting to recharacterize the form from ETA to one based on DATC, and continuously raising new arguments not properly raised with the Appeals office during the years that administrative proceedings were pending. Petitioners’ inconsistencies and strategies of altering forms and resubmitting them to different IRS offices apparently were intended to avoid submitting financial information and to support their claim that the payment made with the offer was refundable.” Order, at p. 3.

Any confusion was engendered by Craig & Kristen. NOD affirmed.

All y’all (I’m in Texas with my nearest and dearest, sweeter than Blue Bell Homemade Vanilla) will recall The (now-retired) 7 Cir Divebomber, Judge Richard Allen Posner, who blew off Reg. Section 1.183-2(b) as a ”goofy” regulation.

If not, see my blogpost “Amen, Judge Posner,” 12/22/16.

Well, today Judge Cohen, who eschews cognomens, trudges the weary nine (count ‘em, nine) factors in the hobby-vs.-profit checklist, and finds that Shane V. Robison and Robin S. Robison, 2018 T. C. Memo. 88, filed 6/19/18, were actually all-cattle, whatever the state of their hats.

And were out for a profit, notwithstanding five years of seven-figure Silicon Valley income and thirteen (count ‘em, thirteen) years of continuous six-figure cattle losses.

They bought the ranch, tried and bailed out of paint horsing and quarter horsing, got into a high-altitude cattle raising operation, and retained “…a local expert regarding brisket disease. At high elevations cattle are at risk of brisket disease, which causes fluid accumulation in a cow’s lung that can then cause it to suffocate. A cow with a low pulmonary artery pressure score (PAP score) indicates an animal with a greatly reduced risk of brisket disease.” 2018 T. C. Memo. 88, at p. 8. As a moist brisket barbecue lover, I entirely appreciate this…with a rich sauce and a cold Shiner.

And they had bushelbaskets full of records, some contemporaneous, some ex post facto. And the essential separate bank account and CPA.

They also hired a ranch manager, even though he hadn’t managed a registered ranch before.

“A profit motive may also be indicated if a taxpayer ‘employs competent and qualified persons to carry on such activity.’ Petitioners hired professionals to manage Robison Ranch, employing a full-time ranch manager and a ranch hand during the years in issue, both of whom lived on site.” 2018 T. C. Memo. 88, at p. 19.

Judge Cohen finds Shane and Robin are in it for the money.

But did they materially participate?

All their well-kept records don’t show hours. And their testimony shows they spent time, but most of it was investor-type oversight, looking at books and chatting up experts. Shane and Robin didn’t spend too much time “ridin’, rockin’, ropin’, poundin’ leather all day long,” as Fred Howard and Nat Vincent put it.

And finally, that “competent and qualified” ranch manager hands Shane and Robin the Section 469 passive loss rules kibosh.

“Petitioners’ activities in operating through the ranch manager suggest characterization of the activity as passive—that of an investor. That was the observation of the Court at the conclusion of the trial, and our impression has not been altered.” 2018 T. C. Memo. 88, at p. 24.

Well, Shane and Robin can always take those suspended multi-million-dollar losses against the profit (if any) when they sell.

Takeaway- That “goofy” regulation can be a trap.

Another Jimmy Webb classic sung by Glen Campbell gives me the headline for today’s blogfodder, Hampton Software Development, LLC, 2018 T. C. Memo. 87, filed 6/19/18, with Judge Chiechi decomposing almost as many electrons as did Judge Goeke did three years ago.

See my blogpost “Nothing Succeeds,” 2/26/15, the story of TFT Galveston Portfolio, Ltd, 144 T. C. 7, which Judge Chiechi quotes in extenso.

IRS won a Phyrric victory back in ’15 in Galveston, getting one quarter of FICA/FUTA plus chops, when they were trying for numerous years’ worth.

But yesterday’s scratch win is today’s complete win, as the property manager gets nailed as an EE, not IC, for all periods at issue.

The interesting thing about this fact-bound reprise is that petitioner gets whanged for not seeking discovery concerning the Section 6751 Boss Hoss, just protesting that it’s too burdensome to get IRS’ documents.

“The parties agree in their respective filings that sec. 7491(c) applies only ‘with respect to the liability of any individual’ for, inter alia, any penalty and that therefore respondent does not have the burden of production under sec. 7491(c) for the penalties under sec. 6656(a) that respondent determined. The parties also agree in their respective filings that petitioner has the burden of proof and the burden of production with respect to the penalties under sec. 6656(a). Petitioner nonetheless argues that ‘[r]espondent would be the only party with access to these records [any records regarding the approval that sec. 6751(b)(1) requires] and, therefore, it would place an undue burden on * * * Petitioner to be required to produce internal documents of the Internal Revenue Service to prove a penalty assessed against them [sic] was proper.’ We agree with petitioner that ‘[r]espondent would be the only party with access to these records [any records regarding the approval that sec. 6751(b)(1) requires]’. We disagree with petitioner that ‘it would place an undue burden on * * * Petitioner to be required to produce internal documents of the Internal Revenue Service to prove a penalty assessed against them [sic] was proper.’ That is because petitioner did not ask us to allow it (1) to conduct discovery in order to ascertain whether respondent has any records regarding the approval that sec. 6751(b)(1) requires with respect to the penalties under sec. 6656(a) and/or (2) to reopen the record in order to dispute that that approval occurred.” 2018 T. C. Memo. 87, at pp. 42-43, footnote 22.

Takeaway- Demand discovery unless the signed Boss Hoss document is on the table. The burden is not only on the taxpayer-petitioner, but also on the taxpayer-petitioner’s lawyer.

No, not Weller, Newcomb College, nor yet The Mad Potter of Biloxi, or any other whose works bring tears to David Rago’s eyes. Today we have another in the ongoing series examining cost of goods sold (COGS) as an offset to the earnings of the floggers of medicinal cannabis, Jesse M. Loughman and Desa C. Loughman, 2018 T. C. Memo. 85, filed 6/18/18.

Jess and Des have a Sub S. All their trafficking write-offs gets bounced; what COGS they could prove, they get. But they claim that their non-COGSnizable salary and wages are being double-taxed, as they can’t deduct them per Section 162 because of Section 280E, yet they have to put them on their 1040 MFJ.

“Petitioners contend that discriminatory treatment results from an S corporation’s being required to pay a reasonable wage as a salary to its officers pursuant to sections 3111, 3121, 3301, and 3306, as other entities are not subject to this reasonable wage requirement. The Code sections which petitioners refer to apply to the administration of employment taxes. The parties are not disputing the reasonableness of the wages. Rather, petitioners are contending that this reasonable wage requirement results in double taxation.” 2018 T. C. Memo. 85, at p. 8.

Tough, says Judge Kerrigan.

“If petitioners had hired a third party to perform the officer duties that they performed, and they paid that third party an amount equal to that included as wages in petitioners’ gross income, petitioners’ gross income would not include the third party’s wages from [pottery]. Petitioners would ultimately have less income, but they would not owe Federal income tax on the wages paid to the third party. However, section 280E would still disallow [pottery]’s wage expense deductions not attributable to COGS. Petitioners’ flowthrough income would be the same.  The application of section 280E to deny Palisades’ wage expense deductions is not discriminatory; it applies equally, regardless of whether petitioners themselves or a third party receives the wages.

“To the extent that petitioners believe they received disparate tax treatment as a result of organizing their marijuana business as an S corporation, petitioners were free to operate as any business entity and in other trades. Petitioners chose to operate [pottery] as an S corporation in the marijuana business. Petitioners are responsible for the tax consequences of their decision.” 2018 T. C. Memo. 85, at pp. 10-11.

Section 530 doesn’t help, because this isn’t an employee reclassification. Officers of a Sub S are statutory employees and can’t be reclassified.

Is it always wise to counter an adversary’s summary J motion with a cross-motion for summary J ? Maybe not, but I wish I had more insight into IRS’ decision to resist but not cross-move in Estate of Richard F. Cahill, Deceased, Patrick Cahill, Executor, 2018 T. C. Memo. 84, filed 6/18/18.

Pat Ex’r wants summary J that Reg. Section 1.61-22 economic benefit regime wipes out Sections 2036, 2018 and 2703. IRS says no it doesn’t, but there are material questions of fact.

Like what? “In his response to the estate’s motion, respondent argues that there are genuine issues of material fact. In its reply to respondent’s response, however, the estate argues that ‘the facts regarding the split-dollar transactions and the documents underlying the transactions remain undisputed.’ In its reply the estate concedes that it has no objection to respondent’s proposed findings of fact as attached to respondent’s response. And the heading of one section of the estate’s reply is ‘Respondent’s Summary of Facts Does Not Conflict with Petitioner’s’. Because the estate agrees with respondent’s characterization of the facts, we accept respondent’s summary of facts and proposed findings of fact as undisputed for the purposes of deciding the estate’s motion for partial summary judgment.” 2018 T. C. Memo. 84, at pp. 2-3 footnote 2.

It’s a split-dollar life insurance deal. The late Richard, 90 years old and incompetent, borrows $10 million via a self-settled trust (of which Pat Ex’r is trustee, and also the late Richard’s attorney-in-fact immediately prior to the time the late Richard became the late Richard), to buy life insurance on Pat Ex’r (individually), cousin William (trustee of another of the late Richard’s last-minute trusts) and Mrs Pat Ex’r. The late Richard’s trust and Pat are personally liable for the loan, but the policies are pledged.

The late Richard promptly becomes the late Richard.

It’s the usual stash of the cash surrenders of the policies. You can read all of ex-Ch J Michael B (“Iron Mike”) Thornton’s narrative, but in the end, the estate of the late Richard claims it has only $183K, where the cash surrender values aggregate $9.6 million and were stowed in the other last-minute trust.

Economic benefit applies only to gift tax, not estate tax. And the future possibility that Ex’r Pat, Mrs Ex’r Pat and cousin William might give gifts to their progeny to buy out the family business is a matter for the beneficiaries, not the estate. All they got was the cost of current life insurance premiums; the estate of the late Richard kept the rest.

But whatever the law, ex-Ch J Iron Mike won’t buy that this was an exchange of equivalent values. The late Richard’s trust, and thereby his estate, got $183K; Ex’r Pat, Mrs Ex’r Pat and cousin William got $9.6 million.

Anyway, ex-Ch J Iron Mike lets it all ride. “Respondent has not moved for summary judgment in his favor on any of the issues discussed. As there may be other facts or theories not yet presented, we decline to treat respondent’s response to the estate’s motion as a cross-motion for partial summary judgment.” 2018 T. C. Memo. 84, at p. 35.

I’m perplexed. Motion to revise?