I doubt Judge Travis A. (“Tag”) Greaves is old enough to have participated in the a capella singing style above-referred-to in the title first set forth at the head hereof (as my expensive colleagues would say). But the style so fits Judge Tag Greaves’ approach to the manifold motions he disposes of in Malibu Valley Land, LLC, Spectrum Development, Inc., Tax Matters Partner, Docket No. 20442-19, filed 3/11/25, that I might just could maybe so make it another Taishoffism, in this case standing for “denied without prejudice.”

The “win your case by preclusion” tactic is in full cry. There are five (count ’em, five) such, one from IRS and four from the Malibus.

IRS wants to stop inquiry into conduct and motives of certain employees in the Boss Hoss sign-off, which should be a Greenberg’s Express slamdunk. But Judge Tag Greaves says Boss Hossery may open the door.

“Two important questions in this case—whether the penalties determined in the administrative audit were properly approved in accordance with section 6751(b) and whether the burden of proof should be shifted to respondent under section 7491–expressly require us to review certain events that occurred during the audit. There are substantial uncertainties regarding these questions that we believe the witnesses that respondent seeks to exclude can answer. For example, petitioner alleges that Ms. J did not approve each penalty determined under section 6662 because the notice of proposed adjustment she signed did not specify each subsection under which a penalty was determined and the Form 886-A, Explanation of Items, which set forth the subsections was not prepared until later by an unknown IRS employee.” Order, at pp. 2-3. (Name omitted). Doowop.

Practitioners, take notice. Although IRS needs only a smidgen of basis for determining a deficiency (including chops) to raise presumption of correctness, here’s an opening.

The Malibus foursome are a series of reaches. As for two of them seeking to preclude IRS witnesses, IRS claims they’re not being called, so the Malibus can yell at trial if they’re ambushed. The documents these witnesses produced are addenda to the expert’s report filed, so the Malibus can attack these on cross. One has to do with a witness’ qualifications, which can be dealt with on voir dire.

The last Malibu bœuf has to do with an undisclosed witness. ” We agree that the parties generally reserve the right to call certain categories of witnesses that are not specifically identified. For example, parties often reserve the right to call witnesses to identify and authenticate documents. Respondent’s lack of identification of this witness falls in line with this practice. In fact, respondent provided more information regarding this unidentified witness than is typical. Respondent indicated that the unidentified witness will be a representative of the California Coastal Commission and that the topic of testimony will be the legal restrictions on the subject property. This disclosure provides ample information for petitioner to prepare for cross examination.” Order, at p. 4.

Conclusions of law from a witness who isn’t an expert, Judge? Judge Tag Greaves is also dubious, but for now it’s also a doowop.

Sketchy charitable donation deductions are not geographically limited; we have some good ones up here in the North. William J. Cade and Mary E. Cade, T. C. Memo. 2025-20, filed 3/10/25, claim they forgot to take a $283K charitable deduction on their 1040, so they file a 1040X which IRS bounces after Exam rejects it. The Cades can contest liability at their CDP, as the deficiency is self-assessed and not the result of a SND.

IRS goes one-for-three on summary J. The Cades’ trusty attorney strikes out swinging when he claims the Form 8283 is all-sufficient.

“Petitioners have advanced two arguments in urging that they secured ‘qualified appraisals.’ According to AO M, petitioners’ counsel took the position during the CDP proceeding ‘that a Form 8283 was sufficient’ and that ‘no other documentation needed to be provided.’

“Petitioners contended, in other words, that the Forms 8283 attached to the amended return were themselves ‘qualified appraisals.’ This argument is a non-starter. ‘Form 8283 is the form that the IRS prescribes for an appraisal summary.’ Savannah Shoals, LLC v. Commissioner, T.C. Memo. 2024-35, at *13 (emphasis added). Needless to say, an ‘appraisal summary’ is not the same thing as an ‘appraisal.’ The required contents for a ‘qualified appraisal’ are set forth in Treasury Regulation §§ 1.170A-13(c)(3) and 1.170A-17(a). The much more limited requirements for an ‘appraisal summary’ are forth in Treasury Regulation § 1.170A-13(c)(4). The regulations thus make clear that an ‘appraisal’ and an ‘appraisal summary’ are distinct documents.” T. C. Memo. 2025-20, at pp. 11-12.

When the appraisals show up, the appraisers themselves are a wee bit below grade. “Mr. P, the individual who appraised the clothing items, describes himself as the retired owner of the Unique Army Navy Store in Albany, New York. Mr. M, the individual who appraised the cobblestones, describes himself as a project supervisor and estimator for a company that does commercial stonework. Mr. Evans, the individual who appraised the vinyl flooring and adhesive, describes himself as ‘the operational supervisor’ at Discount Flooring Mart in Albany, New York.

“None of these individuals avers that he ‘regularly performs appraisals for which [he] receives compensation.’ § 170(f)(11)(E)(ii)(II).” T. C. Memo. 2025-20, at p. 13. (Names omitted).

And the defects are fatal: “Several of the requirements in question—e.g., that the taxpayer obtain on actual appraisal and that the appraiser ‘regularly perform[] appraisals for which [he] receives compensation’—demand strict compliance because they are imposed by the statute itself. See § 170(f)(11)(E)(i), (ii)(II).” T. C. Memo. 2025-20, at p. 14, footnote 8.

But Judge Albert G. (“Scholar Al”) Lauber finds fact questions in the CWA. Taishoff says there are plenty.

After arguing for 11 (count ’em, 11) months that the Form 8283 was a CWA, “petitioners finally supplied what purported to be an actual receipt from Victory Christian Church, ostensibly dated December 3, 2019. But the timing of this submission arouses suspicion. The Examination Division, AO M, and EAO L had been requesting a copy of the CWA for many months. If petitioners or their return preparer had this document in their files, it seems odd that it was not provided sooner.

“The receipt has other questionable features. It lists the three categories of items contributed and states that ‘[n]o goods or services were provided to the donor in return for donor’s contribution.’ But the signature is illegible, and the document does not indicate the signatory’s name or title.

“The receipt is dated December 3, 2019, the same date that appears in the ‘Donee Acknowledgment’ in Section B, Part IV of each Form 8283. But the address shown for the Church on the two documents is different. The Form 8283 lists the Church’s address as 118 Quail Street, Albany, New York 12206. The receipt lists the Church’s address as 1312 Central Avenue, Colonie, New York 12205. And while the signatures on the respective documents are both illegible, they appear to be different signatures. Given that the documents were ostensibly executed on the same day, these seeming discrepancies require explanation.” T. C. Memo. 2025-20, at pp. 9-10. (Names omitted).

Unscrambling this frittata is clearly ill-suited to summary J. I’m sure the trial testimony will be utterly absorbing.

Likewise the Section 170(f)(11)(A)(ii)(II) good-faith omission of the appraisal escape clause is a question of fact. Did the Cades exercise ordinary business care and prudence? I report, Judge Scholar Al will decide.

No dilithium crystals, mineral deposits, or brown-headed nuthatches, only cobblestones and vinyl flooring, but we up here in Excelsiorland have some good 170s too.

Prominent among their wares, CLE merchants tout winning your case anywhere but at trial. Winning by preclusion and exclusion are big sellers, as we see in Adrian D. Smith & Nancy Smith, et. al., Docket No. 13382-17, filed 3/7/25. Adrian and partners are transnational architects enmeshed in a brouhaha over Section 41 additional research credits for a trio castles (hi, Judge Holmes), one each in Dubai, Saudi Arabia, and Abu Dhabi. For backstory, see my blogpost “Castles in the Sand,” 12/18/24*.

Adrian wants Judge Christian N. (“Speedy”) Weiler to take judicial notice of a bunch laws (hi, Judge Holmes) from SA, UAE including Dubai, the UK, and the Berne Convention. IRS says they’re all irrelevant.

Judge Speedy Weiler will decide that. “…the question before the Court now, is whether we should take judicial notice of foreign law–not whether foreign law applies to the Contracts in question. The latter question will ultimately be decided by the Court, after trial. However, failing to take judicial notice now could hinder the Court in examining the legal issue of whether the foregoing foreign laws apply. Accordingly, we are inclined to accept petitioners’ Request for Judicial Notice, and then allow the parties (after trial) to present their arguments on whether foreign law apply to the Contracts in these cases.” Order, at pp. 2-3.

There’s also a bunch motions (ditto) to preclude experts’ opinions and exhibits, all of which Judge Speedy Weiler denies without prejudice as premature. There are reasons why we have trials, among which is to see what this stuff is, how it proves anything, and how it stands up to cross-examination and countervailing evidence.

* https://taishofflaw.com/2024/12/18/castles-in-the-sand/

It’s always a good idea to check court rules before you leap into action. IRS counsel didn’t, and provides an object lesson in Blake C. Allen, Docket No. 16229-24, filed 3/6/25.

Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan provides the lesson: “the above-referenced Notice of Withdrawal As Counsel for Respondent is recharacterized as a Motion to Withdraw As Counsel.”

Rule 24(c)(2) requires a motion when one is sole counsel of record for a party. Notice is sufficient if co-counsel remains on board. If you’re on your own, ask, don’t tell.

So says Judge Holmes in Estate of Barbara Galli, Deceased, Stephen R. Galli, Executor, et al., Docket No. 7003-20, filed 3/5/25. Son Steve and the late Barbara, before she became the late Barbara, executed a nine-year loan note for $2.3 million which Barbara advanced in full at mid-term AFR (then 1.01%).

In support of his motion for summary J that this was a loan, not a gift, hence not reportable on a 709 when made, Steve introduces the note, Barbara’s income tax returns reporting interest received, and Steve’s bank statements showing interest paid. There’s a fight over the worth of the unpaid balance of the note in Barbara’s estate, but that’s not at issue here.

IRS’ position isn’t entirely clear (see Order, at pp. 2-3), but Judge Holmes finds IRS isn’t saying the whole loan arrangement was a sham, only that the loan terms were below-market, hence a partial gift, and the worth of the unpaid balance of the note in Barbara’s estate is undervalued, so both gift and estate taxes are due.

Steve says Section 7872(c) says it all. If this is a loan (and Judge Holmes says it is, because Steve has the receipts and IRS has the Michael Corleone gambit, classic variation), the AFR controls. And while characterizing a transaction as a loan involves a multi-prong test, Judge Holmes don’t need no “prongification” or dancing with the prongs (Order, at p. 4) to give Steve summary J.

“To sum up, the issue on these motions are whether the transaction was a gift, a loan, or a partial gift. We determine that the Commissioner is not asserting that the transaction was entirely a gift and would lose on the proof if he were. That leaves us to apply section 7872, and under that section, this transaction was not a gift at all.” Order, at p. 5.

Applicable Federal Rate means Applicable.

Shall Ye Know Them

Judge Mark V. (“Vittorio Emanuele”) Holmes isn’t so sure about that when it comes to Ogeechee Plantation Property, LLC, Ogeechee Plantation Manager, LLC, Tax Matters Partner, et al., Docket No. 6585-21, filed 3/5/25.

This Dixieland Boondockery features two (count ’em, two) deeds. Ogechee and an outfit called Belford Oaks each contributed a conservation easement, and a couple other outfits did likewise (remember this is Judge Holmes). They want summary J that these were “qualified real property interests” per Section 170(h)(1)(A) and donated in perpetuity per Section 170(h)(2)(C).

The deed donating the interest describes the parcel in question as lots on a tax map, but same are carve-outs from a much larger parcel, the description of which, printed in full, runs a page-and-a-half. The problem doesn’t end there, as three (count ’em, three) years later, two other outfits, Belford Pines and Fort Argyle filed a “corrective limited warranty deed” that omits any reference to the larger parcel. Order, at p. 4.

Judge Holmes is concerned the petitioners may have been getting shifty.

“These cases are presumptively appealable to the Eleventh Circuit. In Pine Mountain Preserve, LLC v. Comm’r, 978 F.3d 1200, 1207 (11th Cir. 2020), that court interpreted section 170(h)(2)(C) to require donation of an easement over a defined property. It specifically held that a restriction on ‘the real property’ is not perpetual when the boundaries of the property might shift, though it ruled that the deed at issue did not allow for shifting boundaries.” Order, at p. 4.

But the initial deed and the corrective limited warranty deed vary so widely that Judge Holmes can’t tell what was originally granted, and what error, if any, was sought to be corrected.

“Ogeechee and Belford Oaks may not have adequately described the property over which they were granting their easements. And the subsequent changes in the ‘corrective deeds’ that Belford Pines and Fort Argyle filed may be an attempt to change the boundaries of the property to which the easement applies, or an implicit admission that the [original] deeds … did not adequately describe that property, or maybe something else.” Order, at p. 4.

Tough to solve after a trial, but here it’s easy to bounce summary J because movant hasn’t shown entitlement to judgment as a matter of law.

But Judge Holmes won’t continue trial, now set for Jacksonville FL in June, because hard to find courtroom space with all these Dixieland Boondockery trials going on.

Judge Albert G. (“Scholar Al”) Lauber, though still perplexed at Cassandra Allen’s maneuver (disclosing W-2 income on a gift tax return while not disclosing same nor paying tax thereon on a 1040X), must correct his opinion in T. C.  Memo. 2025-5, filed 3/4/25, which creates a new entry in my “Who Cares?” series..

Cassandra moved for a Rule 161 reconsideration. Judge Scholar Al thought she lived in MS when she petitioned, but she says she lived in MI.

So Judge Scholar Al orders that the opinion correct Mississippi to Michigan, and appeals to 6 Cir rather than 5 Cir.

For the rest, the previous opinion stands. See my blogpost “Just When Ya Think Ya’d Heard ‘Em All,” 1/16/25.*

* https://taishofflaw.com/2025/01/16/just-when-ya-think-yad-heard-em-all/

CF Headquarters Corporation, 164 T. C. 5, filed 3/4/25, claims the $3.1 million it got from NY State to stay in NYC post-9/11, when its subsidiary Cantor Fitzgerald lost 658 of its 1000 employees on 9/11, was a contribution to capital, or a gift, or disaster relief. Anyway, it’s not taxable income, they say.

In a “REVIEWED” full-dress T. C., Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan says no. For some background, see my blogpost “Continuation,” 9/16/20.*

The NYS grants weren’t part of permanent working capital, but went to pay rent and salaries, which the terms of the grants required. The only capital items were furniture, furnishings and equipment, and Taishoff says even those might have gotten Section 179 treatment.

The grants aren’t gifts because NYS hoped for tax revenue from corporate operations and employee State income taxes. Quid pro quo.

Section 139 disaster relief money is excludable only by individuals, which CF Headquarters Corporation isn’t.

But CF does escape penalties, because it cites all the right cases, so substantial authority. A Taishoff “Good Try” to Kevin M. Flynn, Esq., CF’s trusty attorney.

JJ. Foley, Buch, Nega, Pugh, Ashford, Urda, Copeland, Jones, Toro, Greaves, Marshall, Weiler, Way, Landy, Arbeit, Guider, Jenkins, and Fung are all on board.

* https://taishofflaw.com/2020/09/16/continuation/

The trusty attorneys for Albero Holdings, LLC, Albero Investors, LLC, Tax Matters Partner, Docket No. 16284-21, filed 3/4/25, are trying to understand and undermine the Boss Hossery therein, but their document production demands and interrogatories are run over by Greenberg’s Express.

Judge Elizabeth Crewson Paris: “‘As a general rule, this Court will not look behind a deficiency notice to examine the evidence used or the propriety of respondent’s motives or of the administrative policy or procedure involved in making his determinations.’ Greenberg’s Express v. Commissioner, 62 T.C. 324, 327 (1974). By seeking drafts of final documents, petitioner is essentially seeking to look behind the signature appearing on the face of the form. See Sparta Pink Prop., LLC v. Commissioner, T.C. Memo. 2022-88, at *8; Patel v. Commissioner, T.C. Memo. 2020-133, at *21–22. This Court has held repeatedly that the ‘written supervisory approval requirement . . .requires just that: written supervisory approval.’ Dorchester Farms Prop., LLC v. Commissioner, T.C. Memo. 2023-92, at *5 (citing Pickens Decorative Stone, LLC v. Commissioner, T.C. Memo. 2022-22, at *7 (quoting Raifman v. Commissioner, T.C. Memo. 2018-101, at *61)). And a manager’s signature on a civil penalty approval form, without more, is sufficient to satisfy the statutory requirements. See Sparta Pink Prop., LLC, T.C. Memo. 2022-88, at *8 (citing Belair Woods, LLC v. Commissioner, 154 T.C. 1, 17 (2020)). Respondent provided petitioner with the penalty approval form electronically signed by the assigned revenue agent’s supervisor and the final FPAA. The draft documents petitioner seeks are irrelevant to determining respondent’s compliance with section 6751(b)(1).” Order, at p. 3.

I’m leaving in the citations because I’ve blogged all these cases.

The Boss Hoss has a first-class stateroom on Greenberg’s Express.

Omnibus motions are a regular feature of litigation in both State and Federal courts. It is economical to dispose of whatever impedimenta can be dealt with pretrial.

Hence Jerry Fitzgerald’s trusty attorneys file an omnibus motion to “quash respondent’s deposition notice and subpoena, motion for protective order, and opposition to motion to compel.” Rising Rock Partners, LLC, Robert Schill, LLC, Tax Matters Partner, et al., Docket No. 23614-21, filed 3/3/25. Jerry is a nonparty; his exact role, if any, in the case is unclear from the text of the order.

Judge Travis A. (“Tag”) Greaves tosses Jerry’s motion and supporting memorandum, but allows two (count ’em, two) separate motions and a separate opposition if trusty attorneys wish.

Rule 54(b) requires separate motions. And I can see why putting opposition to an adversary’s motion in one’s own motion (other than a cross-motion) might potentially confuse an adversary. Of course, hitting a pro se with a shotgun motion is unfair.

But here IRS is on the receiving end. IRS’ attorneys have been around the block a couple times (hi, Judge Holmes), and I am sure were nowise befogged by Jerry’s documents. Judge Tag Greaves has unscrambled many frittatas during his tenure on the Tax Court bench, surely much more complicated than that posed by Jerry’s trusty attorneys, even though a source tells me that one such has been “listed as a Best Lawyers: Ones To Watch in Tax Law since 2021,” an honor to which I have never aspired.

I most respectfully suggest that when Judge Patrick J. (“Scholar Pat”) Urda takes up the Chieftainship in June, he cast a glance at Rule 54(b), and helps me (and perhaps Jerry’s trusty attorneys) understand the rationale behind the Rule.