In this season of reflection and penitence, I confess my fear that I am a bad influence on Judge Mark V Holmes. While he occasionally has referred to musical comedies in the past (cf. my blogpost “Chenery on the Roof,” 2/4/15), my addiction to such allusions seems to have seeped into Judge Holmes’ serious evaluation of David F. Burbach, 2019 T. C. 17, filed 2/7/19.

Judge Holmes quotes Meredith Willson’s 1957 operetta, about trouble with a capital T that rhymes with P and that spells Pool. Because Dave is a swimming-pool designer of note throughout the Midwest, bringing summer R&R to municipalities, reaping substantial rewards and promptly filing returns and paying taxes thereon, until he falls into the clutches of an incoherent self-styled EA, whom I’ll call GTE.

GTE manufactures a phony foundation to house Dave’s Ford Motor Company memorabilia, creates a phony self-employed pension plan (although Dave is really an employee of one of the corporations that GTE sets up for him), and otherwise fiddles Dave’s tax picture.

Dave confronts GTE. And what GTE tells him is clessic (no, not a misprint…that’s how it should be pronounced). A C Corp has six years to file its returns.

Dave wants to use this for his good-faith defense against chops. I may be a bad influence on Judge Holmes, but that’s nothing compared to what GTE did to Dave.

Judge Holmes seems to relish GTE’s high-priced prose: “’Are you a Beleaguered American Taxpayer?  Is the Grizzly Bear {the IRS} feasting sumptuously in [sic] your money that you have earned by work? * * *  Are you ever going to use Rule of Law to stop paying maximum taxes to the Grizzly Bear?  Do you have the heart to use Rule of Law through me? * * *  What is your decision?” 2109 T. C. Memo. 17, at p. 8.

“Burbach’s testimony is laced with references to [GTE]’s status as an enrolled agent, but the Commissioner correctly points out that Burbach never verified [GTE]’s status with the IRS or even looked into what an enrolled agent actually is.  Even if he had, Burbach’s initial contacts with [GTE] should’ve thrown up more red flags than Florida in hurricane season.  Burbach paid [GTE] $1,200 for a two-day class at which [GTE] provided a class handout that is comprehensible only in its descriptions of aggressive tax-avoidance schemes—[GTE] encouraged Burbach to apply ‘Rule of Law’ to ‘stop the 445 legal thieves’ in Washington and ‘stop paying maximum taxes to the Grizzly Bear’.” 2019 T. C. Memo. 17, at p. 44.

Dave turned to one of GTE’s ex-employees, who straightened out some of Dave’s problems, but not nearly enough. Finally Dave came up with his own numbers.

He does get some Section 179 equipment write-offs. But the “director’s fees” he tried to funnel into his pension plan crater, because he’s an employee of a corporation, not self-employed, and the “director’s fees” were paid for working, not promulgating policy and oversight.

EAs, don’t do this.

I note Judge Elizabeth A. Copeland, a recent elevatee to the Tax Court Bench, will be visiting Our Fair City on Monday in pursuance of her exalted office.

Regrettably, her profile on the Tax Court website modestly omits her cursus honorum. To remedy this omission, your blogger steps once more into the breach, good friends, once more.

Judge Copeland was born on June 1, 1964, in Colorado Springs, CO. She received a Bachelor of Business Administration degree, cum laude, in 1986 from the University of Texas at Austin. Prior to attending law school, she worked at Ernst & Whinney  (now Ernst & Young), from 1986 to 1989. Copeland received a Juris Doctor degree in 1992 from the University of Texas Law School. While attending law school, she served as a law clerk to Justice Eugene Cook of the Texas Supreme Court. She began her legal career and Tax Court career as an attorney adviser to Judge Mary Ann (“SEC” = She Eschews Cognomens) Cohen from 1992 to 1993. From 1993 to 2012, she practiced law with the firm of Oppenheimer, Blend, Harrison & Tate, Inc., becoming a shareholder in 2000. She practiced law with the firm of Strasburger & Price, LLP, in San Antonio, TX,  from 2012 to 2018, when she became a judge. Prior to said elevation, Judge Copeland handled all matters pertaining to federal income taxation, including planning and tax controversies, and also dealt with IRS at the administrative appeals level and in litigation. Judge Copeland has been board certified in tax law by the Texas Board of Legal Specialization since 2002. Tax Analysts named her a 2012 Tax Person of the Year in its national edition of Tax Notes. She served as chair of the Texas State Bar Association Tax Section for the 2013/14 term and is a CPA.

Judge David Gustafson is truly the petitioner’s friend. Though I’ve accorded STJ Diana L. Leyden the title of “The Taxpayer’s Friend” on account of her service in her sidewalks of New York days, Judge Gustafson goes even farther and further. He’ll try your case in the slammer; he’ll draft your pleadings; he’ll do everything but bring doughnuts and coffee to calendar call and feed the parking meter while you wait. He won’t do your research, though.

But today he outdoes himself.

This designated hitter, Herbert Anderson Denton & Lydia B. Denton, Docket No. 9671-18L, filed 3/6/19*, tells a tangled tale of two (count ‘em, two) tax years ten years apart, featuring NODs, non-NODS, CDPs with dubious jurisdictional predicates, IRS miscues and attempted goal-line saves thereof.

The older year is still in play, both as to NITL and NFTL, as the dates are so jumbled Judge Gustafson can make nothing of them. But IRS can try to come up with sufficient proof that Herb & Lydia are too late for that year. If IRS can, Judge Gustafson will toss that part of their petition.

It looks like the more recent year is a definite toss, as Herb & Lydia petitioned before Appeals issued a NOD for the NITL at issue. During this spaghetti-like tangle, IRS unloads a NOD, and there’s still time to petition that one.

Into the fray comes Judge David Gustafson, and this is a classic.

“On the one hand it is certainly not our place to advise the Dentons whether or how to litigate their disputes with the IRS. But on the other hand, the pendency of a case like this one (i.e., where more than one tax year is at issue and the Court dismisses only one of those years for lack of jurisdiction) might lead a petitioner to assume that he might not need to file another petition for a new case in the same Court for the tax year initially raised but now dismissed…. Consequently, we think it appropriate to suggest that the Dentons consider whether that could be a wrong assumption. The Dentons should take note of the Notice of Determination issued for [the dismissed year] on February 20, 2019, should decide whether it is in their interest to file now a separate suit challenging that notice, and should calculate the due date for such a suit.” Order, at p. 4. (Emphasis by the Court).

In case Herb & Lydia are a wee bit slow off the mark, Judge Gustafson quotes from the NOD: “The first page of the notice states- ‘If you want to dispute this determination in court, you must file a petition with the United States Tax Court within a 30-day period beginning the day after the date of this letter”–i.e., 30 days beginning February 20, 2019.” Order, at pp. 4-5.

Nudge-nudge, wink-wink, view halloo, reveille third platoon wakey-wakey, all hands on deck.

*Denton 3:6:19

Edited to add, 8/25/21: The Dentons stiped out to an IA, 6/26/19.

The last time I looked at the corporate division of a Federally-chartered Indian tribe, I punted. That Obliging Jurist, Judge David Gustafson, unloaded 68 pages in Uniband, Inc., 140 T. C. 13, filed 5/22/13, which I mentioned as a one-off in my blogpost “Indians Not Taxed,” 5/22/13.

Today Judge Joseph Robert (“Take No Prisoners”) Goeke counts coup on IRS in Blue Lake Rancheria Economic Development Corporation, 152 T. C. 5, filed 3/6/19, in only 52 pages. Blue Lake Rancheria is a Federally-recognized Indian tribe; I’ll refer to their Economic Development Corporation as Blue Lake.

Blue Lake was an IRA Sec. 17, that is, a corporation chartered by the Federal government under Section 17 of the Indian Reorganization Act of 1934.

Judge Goeke provides a quick overview. “To establish an IRA sec. 17 corporation, an Indian Tribe must submit to the Secretary of DOI a resolution adopted by its tribal council requesting the issuance of a charter.  The Secretary has delegated his power to issue corporate charters to the Bureau of Indian Affairs (BIA) regional offices.  As part of the approval process, each IRA sec. 17 charter must be reviewed by BIA for consistency with Federal law and subsequently approved by the BIA Regional Director and by the Assistant Secretary–Indian Affairs.  Following approval by DOI, the tribal council must pass another resolution ratifying the charter.  Upon passage of the ratifying resolution, the corporation is officially created.  Once issued, an IRA sec. 17 charter cannot be revoked or surrendered except by an act of Congress.” 152 T. C. 5, at pp. 17-18.

Blue Lake adopted a resolution incorporating Mainstay, a corporate division, which handled employee leasing and staffing, and ran up a carload of unpaid FICA/FUTA, which IRS attempts to collect from Blue Lake, claiming Mainstay is a subsidiary and Blue Lakes owes the taxes.

Remember the Courts cut the Indians much slack. IRA Sec. 17 is extremely broad, and Judge Goeke will make it as broad as can be. State law must give way to Congress’ Constitutional mandate to deal with the Indians.

The tribal division is different from any other subsidiary. It is truly a legal stand-alone. When Mainstay needed to take title to an office building wherein to operate, the lending bank wanted title placed in Blue Lake d/b/a Mainstay, because their counsel had no desire to tread in the area of Indian law. I don’t blame counsel; here be dragons. And Judge Goeke gives that the go-by when IRS claims this shows Mainstay was alter ego of Blue Lake.

Mainstay had its own EIN, its own bank accounts, ran the building, paid operating costs and debt service itself, and had benefits and burdens. “[Mainstay] had its own customers, including certain departments of the State of California, and used written contracts and client service agreements with those customers.  [Mainstay] was paid by its customers; {Blue Lake] did not receive payments from [Mainstay] customers.  [Mainstay] leased equipment and automobiles in its own name and made lease payments on the same.  [Mainstay] had commercial general liability insurance, workers compensation insurance, and property and casual [sic; I think you meant “casualty”, Judge] insurance all in its own name.  The premiums for these policies were all paid out of [Mainstay’s] operating account.” 152 T. C. 5, at pp. 12-13.

And when Mainstay factored its receivables, everything was done in Mainstay’s name; although Blue Lake waived sovereign immunity to keep the deal going, the waiver extended to Mainstay only, and anyway, Blue Lake had authority to waive sovereign immunity in its charter.

There’s the usual dictionary-chaw over the word “incidental,” relating to corporate powers under State law, and the distinction between State law powers and Indian powers. But it all comes down to the broad Federal enactment and the Constitutional supremacy thereof.

Blue Lake created a separate division, whose liabilities don’t flow back to Blue Lake.

So when divided, Indians are not taxed.

Judge Mark V Holmes wields a mean hose. Confronted with conflicting statutes, regs both current and presumptively overruled by said statutes, and caselaw perhaps resolving part of same, he relegates cleaning up this “exceptionally mucky corner in the stable of tax procedure” to “…any tax proceduralists whose interest in the field is strong enough to impel them to read our nonprecedential orders. But we need do only a quick hosedown.”

The foregoing is excerpted from Henry J. Metz & Christie M. Metz, et al., Docket No. 10346-10, filed 3/5/19. Stables are an appropriate venue, because the Metzes were horsey folk. The backstory is found in my blogpost “Stock or Land,” 4/29/16.

At issue for Section 7430 admins & legals are two of the years for which the Metzes made a qualified offer, coming in above what IRS could establish on the trial, which IRS is stuck with, and whether IRS was justified for the rest. But common to all of the six (count ‘em, six) years’ legals & admins at issue is the net worth of the Metzes. Do they limbo under the $2 million cutoff?

Henry J seems to establish that he individually beats the bar. But Chris claims the net worth of her Sub S is under $7 million, the corporate cut-off. No dice; the words “or any” in the Equal Access to Justice Act (EAJA) sever corporations from their owners.

But can Henry J and Chris each take $2 million, or is the limit $2 million for joint filers? Those “tax proceduralists,” whosoever and wheresoever they be, can plow through Judge Holmes’ four-page exegesis. But it ends up that old Tax Court opinions say each half of a MFJ return gets his or her own $2 million cap. “We follow division opinions as binding precedent, see Sec. State Bank v. Commissioner, 111 T.C. 210, 213 (1998), aff’d, 214 F.3d 1254 (10th Cir. 2000)…. This all means that a possibly contrary statement in subsequent legislative history doesn’t overturn it.” Order, at p. 9 (misnumbered “4” in original; citations omitted). A division opinion means a one-judge T. C. Memo., rather than a full-dress all-hands review (full-dress T.C.). Each Tax Court Judge has his or her own division.

And those say each joint filer gets his or her own $2 million. So Congress and Treasury can say otherwise, if they will.

Next comes unpiecing the net worth of the Metzes when factoring in the net worth of Chris’ Sub S. I leave this to the CPAs. Judge Holmes remarks on the anomaly of acquisition-less-depreciation (as required by EAJA) for computation, as opposed to FMV at time of bringing the cases.

“We are left with the settled impression that if we used fair market values nearer the time the Metzes began these cases…these calculations of net worth would be considerably lower, and quite probably below the $2 million threshold. One might ponder whether it makes sense for the law to benefit those with low bases and giant unrecognized gains compared to those, like the Metzes, whose misfortunes led them to very large unrecognized losses — losses that in all likelihood triggered the audit and litigation whose costs they seek to recover, and which they had to incur to fend off a disastrously high tax bill.

“There’s an old proof in statistics called the Condorcet Jury Theorem which posits that if the members of a group are all better than random at selecting the correct answer to a question, the likelihood that the group will select the correct answer approaches certainty as the size of the group increases. This theorem may give support to a view of stare decisis as reflecting the wisdom of crowds, and should soothe any individual decisionmaker that his decision in accord with precedent is one that is wiser than if he were plowing a virgin field. See Aaron Andrew P. Bruhl, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851, 863 (2014). There is also an old saw uncertainly attributed to Ambrose Bierce that defines stare decisis as ‘a legal doctrine according to which a mistake once committed must be repeated until the end of time.’” Order, at p. 15 (misnumbered as “11” in original).

Using the EAJA’s acquisition-less-depreciation calculations, both Henry J and Chris are over the line. No admins or legals.

This is a subject that provokes one-liners. But I’m being serious today.

A few days ago, I’d watched a film clip of a nonlawyer doing as good a deposition as many a top-class colleague could do, and much better than I could do. And the nonlawyer had only five (count ‘em, five) minutes wherein to do it.

The nonlawyer stuck to ascertaining the names of the people, not what the deponent (a lawyer at the time) said to those people or otherwise interacted with any.

And here is one order from three (count ‘em, three) conjoined cases that would delight any discovery geek, from Judge Gale. Let’s take Adrian D. Smith & Nancy W. Smith, et al., Docket No. 13382-17, filed 3/4/19.

It’s a battle over interrogatories and document production. I’ll spare you most of the nineteen (count ’em, nineteen) pages of Judge Gale’s prose, as without having the texts of the discovery requests before us, the resolutions of the disputes are uninstructive.

But Adrian’s & Nancy’s attorney raises an attorney work product objection, and thereby hangs the cliché.

“The U.S. Supreme Court has defined the scope of an attorney’s ‘work product’ to include materials prepared in anticipation of litigation as ‘reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways’. Hickman v. Taylor, 329 U.S. 495, 511 (1947); see also Branerton v. Commissioner, 64 T.C. 191, 198 (1975).

“In applying the work product doctrine to discovery disputes, courts have drawn a distinction between requests for the identities of persons who may have knowledge of relevant facts–a ‘legitimate concern’ and therefore proper–and requests for the identities of persons whom the opposing counsel has interviewed in preparing the case, deeming the latter as improperly affording the counsel seeking discovery ‘the potential for significant insights into the * * * [opposing counsel’s] preparation of their case (and thus their mental processes).’

“Here, respondent requests the identities of ‘all persons who were interviewed or consulted in preparing the responses.’ Respondent’s interrogatory seeks more than the identities of persons who may have knowledge of relevant facts; it seeks insights into the mental processes and trial preparation of petitioners’ counsel. That is not a proper subject for discovery.”  Order, at pp. 3-4. (Citations omitted, but get them for your memo of law form file).

Note the nonlawyer did not ask the witness about any contacts, conversations, correspondence or anything else between the witness and the named persons “who may have knowledge of relevant facts.” Just the names.

As this is a resolutely nonpolitical blog, I will give no Taishoff accolade to the nonlawyer.

Marc L. Mancini, 2019 T. C. Memo. 16, filed 3/4/19, may have taken a drug that lessened his Parkinson’s disease symptoms, but almost bankrupted him with the compulsive gambling it caused. The cause was Pramipexole, s/a/k/a Mirapex, a dopamine agonist. This prescription medicament supposedly stimulates the part of the brain Parkinson’s suppresses, but also causes impulse control disorders, so some people taking it can’t stop doing crazy stuff.

If I sounds like I know what I’m talking about, don’t be fooled; I cribbed all this from Judge Mark V Holmes’ trudge through the medical literature and Mark’s witness’ expert testimony. Judge Holmes finds the latter slides under Daubert (evidence geeks know what that means, but for human beings it means the minimum necessary to get experts into evidence) for “framework” evidence (what experts in the field generally agree on). But Marc’s expert flunks on “diagnostic,” as the expert didn’t himself treat Marc, so all the expert knows about Marc specifically is hearsay.

I’ve explored the compulsive drug-induced gambling from the Section 72(t) standpoint in my blogpost “Heal Thyself,” 11/21/18. And as I said then, “I don’t know if any of my readers have witnessed the nastier prescription drug side effects in anyone they know; I have. It’s no joke. Some of that stuff can be deadly.” Fortunately the victim survived and is doing very well.

Unfortunately, the drug-induced gambling spree casualty deduction doesn’t work for Marc. Marc wants a casualty loss for the millions he claimed he gambled away. But Judge Holmes says the caselaw requires casualty losses involve damage to property. Marc’s money wasn’t damaged, and anyway, Publication 547’s statement about losses from bank insolvencies doesn’t bind IRS.

I want to give Marc’s attorney a Taishoff “Good Try, Second Class” even though Judge Holmes isn’t buying.

“Sixty-odd years of caselaw notwithstanding, Mancini argues that physical damage can’t be a prerequisite of a casualty-loss deduction because, in general, the Code doesn’t limit the definition of “property” to just physical assets.  Mancini doesn’t cite any cases that support this argument, and, as we’ve seen, the caselaw on casualty losses says the exact opposite.  But he does cite something interesting: an IRS Publication that says a taxpayer can deduct as a casualty the ‘loss on deposits [that occurs] when a bank, credit union, or other financial institution becomes insolvent or bankrupt.’  IRS Pub. 547, Casualties, Disasters, and Thefts, at 4 (2017).  This would suggest that physical damage to the taxpayer’s property might not be required for a casualty loss.

“Fortunately for the Commissioner, his own publications aren’t the law.” 2019 T. C. Memo. 16, at p. 24 (Citations omitted).

Marc’s numbers don’t add up, even though Judge Holmes prepares his usual tables and compares what documents Marc has with his testimony.

It looks like Marc is up for chops, but IRS forgot the Section 6751(b) Boss Hoss sign-off, so no penalties.

We all (or almost all) have them, some documents in now-obsolete formats from wordprocessing programs gone long since, and some up-to-the-nanosecond, which we use every working day. When racing the clock, we haul the nearest appropriate one out, do a quick edit, and fire it off, barely beating the deadline.

Most of the time it works. Most of us have neither time nor inclination for wheel-reinvention. But when it doesn’t work, things get messy.

Here’s Quoc H. Nguyen & Tham T. Tran, Docket No. 23110-18SL, filed 3/1/18, but it isn’t Quoc’s story nor is it Tham’s. I won’t name IRS’ counsel, because there but for the grace of you-know-Whom goes any one of us.

Quoc & Tham petitioned a NOD. Ch J Maurice B (“Mighty Mo”) Foley spots a flaw in the accompanying documents.

“No copy of any notice of deficiency or determination was attached to the petition. Rather, the petition incorporated a Notice CP504, Notice of intent to seize (levy) your property or rights to property, issued to petitioner Tham T. Tran for [year at issue] and an amended [year at issue] tax return for petitioners.” Order, at p. 1.

IRS’ counsel answers 56 days after the petition is served (note Rule 36(a) says 60 days to answer), during the Shutdown. So counsel may be furloughed, but clearly under the gun.

Ch J Mighty Mo: “..respondent failed to attach thereto any notice of deficiency or determination that would support jurisdiction or the filing of an answer. Instead respondent merely noted that no notice of determination concerning collection action had been attached to the petition and that the notice of intent to levy had been included. Respondent did not otherwise explicitly address the jurisdictional status of this case or suggest that any motion or other steps would follow. Inexplicably, answer also closed with a prayer that ‘respondent’s determination, as set forth in the notice of deficiency and/or notice of determination, be in all respects approved’.” Order, at p. 1.

But of course there are only 45 (count ‘em, 45) days to move with respect to a petition, per Rule 36(a), and IRS’ counsel had blown past that.

Still, a second look at the answer, and a quick edit job, before hitting “send” might have saved the day.

Edited to add, 3/2/19: But how can respondent “suggest that any motion” would follow? Rule 36(a) provides, in pertinent part (as my on-the-slopes-at-Vail colleagues would say)  “(a) Time To Answer or Move: The Commissioner shall have 60 days from the date of service of the petition within which to file an answer, or 45 days from that date within which to move with respect to the petition.” That time is gone, Ch  Mighty Mo. So I guess it’s sua sponte time at The Glasshouse.

Just Get The Boss Hoss To Sign Off First

The Palmolives really have taken a licking, and Judge David Gustafson won’t let up. Having toasted their façade write-off (see my blogpost “No Joy Forever – Because Golsen,” 10/11/17), and thrown shade on their good-faith reliance on Mike Ehrmann’s dodgy appraisal (see my blogpost “Gude Faith, He Maunna Fa’ That,” 12/14/18), today he sustains alternative 40% substantial overvaluation penalty and 20% chops for negligence or disregard of rules, understatement of tax, or substantial valuation misstatement, even though awarded six (count ‘em, six) years apart, at Examination and at Appeals, and on different forms.

You can read all about it in Palmolive Building Investors, LLC, DK Palmolive Building Investors Participants, LLC, Tax Matters Partner, 152 T. C. 4, filed 2/28/19.

To begin with, nobody mentioned chops to the Palmolives before the Boss Hosses had signed something. “Section 6751(b)(1) includes no requirement that all potential penalties be initially determined by the same individual nor at the same time. “ 152 T. C. 4, at p. 16. And the Palmolives’ reliance on IRM §20.1 gives them no rights.

“On the issue of section 6751(b) compliance, the IRS’s use of a form other than the one prescribed by internal administrative regulations does not preclude a finding that the supervisory approval requirement has been satisfied. See PBBM- Rose Hill, Ltd. v. Commissioner, 900 F.3d 193, 213 (5th Cir. 2018) (‘The plain language of § 6751(b) mandates only that the approval of the penalty assessment be “in writing” and by a manager’). Section 6751(b) does not require written supervisory approval on any particular form.” 152 T. C. 4, at p. 17. For a glimpse of PBBM pre-5 Cir, see my blogpost “Thanks A Lot, Judge,” 10/11/16, where Judge Morrison piles it on.

And who cares if the RO or the AO didn’t sign the right paper? “What must be ‘in writing’ to satisfy section 6751(b)(1) is the supervisor’s approval. The statute does not require any particular writing by the individual making the penalty determination, nor any signature or written name of that individual.” 152 T. C. 4, at p. 17.

And as long as the Boss Hoss signed something to which the initial determination was manifested, that’s A-OK with Judge Gustafson.

The Palmolives claim that negligence and disregard are two separate penalties, but even if they are, the Exam Boss Hoss signed off on one and the Appeals Boss Hoss signed off on the other.

The Palmolives lose again.

For the Judge who kicked off the epic Boss Hoss silt-stir with his famous dissent (see my blogpost “The Money Back Guarantee Meets The Boss Hoss,” 11/30/16), Judge Gustafson cuts the IRS plenty of slack in the Boss Hoss corral.

The Section 170(h) regs, specifically Reg. 1.170A-14(g)(6)(ii), the split-the-proceeds-if-the-easement-craters variation on the “joy forever” rule, is getting hammered in Oakbrook Land Holdings, LLC, William Duane Horton, Tax Matters Partner, 5444-13, filed 23/27/19.

It seems Billy D and the Oakbrooks claim the reg is invalid, because apparently IRS skipped a couple steps (note this is Judge Holmes’ order, so a dissed partitive genitive or two is de rigueur) when first they put it forth.

But first there’s the Case of the Missing Comments.

“It appears to be the first case in which there is a possible challenge to the validity of 26 C.F.R. §1.170A-14(g)(6)(ii). The Court has recently become aware that there may have been comments submitted to the Treasury Department during the course of considering this regulation, but its attempts to find the text of those comments using normal legal research resources have failed.” Order, at p. 1.

It seems that the Notice of Proposed Rulemaking that kicked off this reg, found in 48 Fed. Reg. 22940-01 (May 23, 1983), can’t be found online, not from Cornell, the Federal Register site, nor yet from Library of Congress’ website. And where these public comments might be, and what they might say, if anything to the point, can only be produced by IRS.

So IRS, go fetch, and when produced, both sides write fifteen (count ‘em, fifteen) but no more, pages saying what they have to do with this case.

In any case, thereafter the parties each have a shot at a twenty (count ‘em, twenty) page memo “to analyze whether the donor’s reserved right to make improvements in the conservation area created by the deed in this case is distinguishable from the similar rights reserved in the deeds at issue in Pine Mountain Preserve, LLLP v. Commissioner, 151 T.C. No. 14 (Dec. 27, 2018).” Order, at p. 2.

Y’all remember Pine Mountain, no? If not, check out my blogpost “Perpetually Swiss,” 12/27/18 BS (Before Shutdown).

Sounds like whether the divvy of the boodle at crater regs are valid won’t decide the case if Judge Holmes decides the Oakbrooks cut the cheese.