When I welcomed Judges Ashford and Pugh to the Tax Court bench, I fear I must have curbed their enthusiasm somewhat. For those among you who come late to this potluck, here’s what I said back on 12/22/14, in my blogpost “New Kids On the Block.”

“Now they can start wading through protester jive, Section 152 relativity, professional and amateur dodgers, nonfilers, late filers and rounders that we lonely bloggers confront every day, although our credentials are much less impressive.”

I ought to have added to the list assorted gamesters and dilatory discoverers. But today Judge Pugh shows us that she knows right well how to deal with the likes of them, in Bay Pacific Networking, Inc. SPARC, Docket No. 21580-14, filed 2/3/16. And no, I don’t know what a SPARC is, either, unless it’s referring to a medical marijuana outlet in San Francisco.

Judge Pugh dropped some helpful hints to IRS and the SPARCers, but they didn’t seem to catch them. So after two months of jilling around the bay, Judge Pugh fires a couple rounds (hi, Judge Holmes) across their collective bows.

“To facilitate informal resolution of the pending discovery disputes, the Court ordered that the parties agree to a list of topics/questions for use in an interview of a representative of petitioner by the IRS. It appears from dueling status reports that in the two months between the… hearing and the…deadline for submission of status reports, little progress has been made.” Order, at p. 1.

So Judge Pugh gets pithy.

“The Court is disappointed in the failure of counsel to cooperate in preparing this case for trial, especially the parties’ inability to communicate. As the parties are unwilling to cooperate on informal discovery (e.g., the proposed interview), we will not pursue any further measures intended to facilitate preparation of this case for trial through informal means. Rather we will direct the parties to our Order… which sets forth specific deadlines for formal discovery, stipulations and other pre-trial matters. The Court admonishes the parties that the failure to cooperate on developing the case for trial will only increase the time and expense of trial for the parties and add to the uncertainty of litigation (for example without stipulations the parties will not know what documents and facts are admitted into evidence until trial). While we urge the parties to work together consistent with this Court’s Rules and precedents, we will not spend judicial resources to assist the parties in preparing this case for trial unless and until the parties demonstrate that time so spent will be well spent.” Order, at p. 1.

And don’t play freeze-the-puck-and-take-the-faceoff.

“We also warn the parties that we will not be extending pre-trial deadlines set forth in our pretrial scheduling order, or the … trial date without good cause. The parties’ failure to cooperate and failure to stipulate do not constitute good cause.” Order, at p. 2.

And just in case y’all weren’t listening, guys: “Lastly, we remind counsel of section 6673(a)(2) of the Internal Revenue Code of 1986, as amended: “Whenever it appears to the Tax Court that any attorney or other person admitted to practice before the Tax Court has multiplied the proceedings in any case unreasonably and vexatiously, the Tax Court may require — (A) that such attorney or other person pay personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct, or (B) if such attorney is appearing on behalf of the Commissioner of Internal Revenue, that the United States pay such excess costs, expenses, and attorneys’ fees in the same manner as such an award by a district court.” Order, at p. 2.

Read and heed, all you dilatory bombardiers.

Broken? Enforced?

There being neither opinion nor designated hitter from The Glass Box on Second Street, I am thrown back on digesting 130 uninteresting orders, be the same more or less as the conveyancers used to say.

But the blogger is put on his/her mettle by such days.

And today, as in recent past, Ch J Michael B. (“Iron Mike”) Thornton manifests his improvisational talents. Case in point: John A. Giantonio, Docket No. 32356-15, filed 2/2/16.

It’s not really about John, but about his trusty CPA, Anthony J. Mascherino. Mr Mascherino files a letter “…on petitioner’s behalf…which Letter the Court will recharacterize as a motion for entry of decision on petitioner’s behalf.” Order, at p. 1.

This provokes from me a massive, Wagnerian “Mein! Was ist das?!”

Letters “on behalf of” petitioners from unadmitted persons, recharacterized as motions, no less?

Of course, if Mr Mascherino is a USTCP, I ask him to accept my deepest apologies, if he is an attorney as well as a CPA, and extreme admiration if he is one who scaled the Olympian heights of the Tax Court Admission Examination. But if either were the case, I wish Ch J Iron Mike had mentioned the fact.

But a quick docket search shows that the Clerk’s Office seems to think John is pro se.

If Mr Mascherino is neither an attorney nor USTCP, nor a corporate officer or a fiduciary (trustee, next friend, executor or administrator), how can his doing any more than putting a letter signed by the petitioner, or by admitted practitioner who has filed a proper Form 7 Entry of Appearance, in an envelope, and properly addressing, affixing postage, and dropping same in a depository maintained by and under the control of the USPS, be acknowledged as petitioner’s act by Tax Court?

How many times have we had it dinned into our heads that powers of attorney are not recognized by Tax Court? And no one not in the Magic Circle can appear in Tax Court on behalf of another.

Talk about “judicial activism”.

But Don’t Wear Out His Patience

 Judge David Gustafson is the humble petitioner’s friend. Like a much Higher Authority, a humble and a contrite heart he does not despise.

Though his spelling may be shaky, don’t presume too far on his good nature. It’s not a good policy.

In witness of the first clause of the above sentence, I proffer the following: “The asserted facts are relevant, discreet, objective, and verifiable or deniable.” Marlene D. Morten, Docket No. 2451-13, filed 2/1/16, a designated hitter, no less.

Judge, the question is not whether the facts are “discreet,” that is, “showing discernment or good judgment in conduct and especially in speech; prudent.” No, the question is whether each admission sought in Interrogatory No. 1 is a separate, independent item, as in “discrete: apart or detached from others; separate, distinct.”

Nobody proofreads these orders.

Howbeit, Marlene is pro se, but she is apparently an attorney, admitted in DC.

IRS wants information about any previously requested admissions to which Marlene didn’t admit. But this is superfluous.

Judge Gustafson: “…with respect to Interrogatory No. 1, the IRS’s motion to compel is denied in part as moot. In view of Ms. Morten’s non-response to the requested admissions, the requested admissions of fact are all deemed admitted as of… the due date of the response, by the operation of Rule 90(c). Consequently, there are no requested admissions that have not been admitted, and the motion to compel is moot as to Interrogatory No. 1….” Order, at p. 2.

Marlene was the beneficiary of three (count ‘em, three) continuances, or what we State-court types call trial adjournments, and she isn’t getting any more.

IRS also wants a witness list from Marlene, and Judge Gustafson says they should get it, so he will compel Marlene to disgorge.

“We do not need, before thus granting the motion in part, to request from Ms. Morten a response to the motion to compel. The interrogatory is manifestly proper and seeks relevant information that Ms. Morten ought to be able to provide, now a full three years after she filed her petition.” Order, at p. 2.

And if Marlene doesn’t?

“If Ms. Morten fails to comply, then the Court would entertain at trial a renewed motion that Ms. Morten be barred from calling witnesses that she had failed to identify in response to Interrogatory No. 2.” Order, at p. 2.

Sounds like Marlene, with the facts deemed admitted and no unidentified witnesses allowed to testify, has nothing left but the Michael Corleone gambit.

Takeaway- Don’t annoy the judge, even one so obliging as Judge David Gustafson.

Lemme tell ya, as we say here in The Apple, it’s no bed of clichés.

First Judge Boasberg unloads on us (see my blogpost “Modified Loving,” 2/4/13). Then Judge Buch kicks us to the curb, as told in my blogpost “Internet Experts,” 5/8/14.

On top of it all, now, on a Friday when there are never any opinions out of Tax Court, there’s not even a designated hitter.

I guess I’m supposed to sift through 125 undesignated orders, digging for blogfodder. But then I get this red-letter message on Tax Court’s homepage: “The Court’s Web site, including the eAccess system, will be intermittently unavailable while system maintenance is performed between 6:00 p.m. and 7:00 p.m. Eastern time on Friday, January 29, 2016. No documents may be eFiled through Petitioner Access or Practitioner Access during this time.”

Have a nice weekend.

I’ve often quoted the immortal words of the late great Charles Dillon Stengel, and I get to do so again today in Constantine Gus Christo, Docket No. 2161-12, filed 1/29/16. While the substance of Judge Paris’ order may be old news to seasoned Tax Court practitioners (the peppery kind, with a salty sense of humor; sorry, guys), non-practitioners may want to lay hold of some back-issue transcripts for background.

So here’s the skinny: “…petitioner filed a Motion for the Court to Pay the Expenses of a Transcript and specifically requested the transcript from the May 14, 2013, partial trial. The Court, on occasion, does pay the cost of a transcript for pro se taxpayers. However, it is not necessary in this case. Petitioner registered for the Court’s electronic filing system, eAccess, which allows him to access the documents filed in his case and file documents electronically. On page 16 of the ‘Petitioners’ Guide to Electronic Case Access and Filing’, located on the Tax Court’s website, it is noted that transcripts are not electronically viewable until one year after the proceeding. The partial trial was held in 2013 and, therefore, is now viewable electronically and petitioner can access it at any time.” Order, at p. 1.

Con, you could look it up.

However, this doesn’t help Randy Jenkins and others similarly situated. See my blogpost “Psst – Y’ Wanna Buy a Transcript Cheap?” 1/14/15.

James W. Blackbourn, II and Angel M. Blackbourn, 2016 T. C. Sum. Op. 5, filed 1/28/16, get the bad news from STJ Lewis (“His Name is My Name”) Carluzzo, and it’s bad on two levels.

First, Jim’s and Angie’s home in Canton, GA, isn’t their first home for the First-Time Homebuyer Credit, First Edition (FTHBCFE). Even though the house Jim owned was labeled his “second home,” he couldn’t rent it out (per the terms of the mortgage he took out to buy it), and he did live there, claimed the GA homestead exemption for that house, and worse, filed his tax returns from there, all during the three-year lockout before he bought the Canton cantonment (sorry, guys). And Jim’s trial testimony that he wanted to rent out second home founders on his homesteading and the mortgage prohibition.

So no FTHBCFE.

Nothing new so far.

But this was the payback model of the FTHBC. It wasn’t really a credit, but an interest-free loan, repayable in annual $500 installments over 15 years. And because of the time lag between Jim’s claimed FTHBCFE and the SNOD, Jim and Angie had paid the Feds $2K of the $7500 loan, for which they got no credit in the SNOD.

STJ Lewis: “Separate and apart from the main issue, we note that the deficiency here in dispute does not take into account the repayments that petitioners made with their 2010 through 2014 Federal income tax returns with respect to the FTHBC claimed on their 2008 return. Because the definition of a deficiency as found in section 6211 does not take into account the increases in a taxpayer’s Federal income tax liability for subsequent periods required by section 36(f)(1), we cannot address this apparent inequity other than to point out that petitioners’ remedy may lie in filing claims for refund on account of the overpayment of Federal income tax resulting from the application of section 36(f)(1). We expect that in response to any such claims, respondent will take the necessary action to ensure that petitioners’ claims for refund, if made, will be processed consistent with the disallowance of the FTHBC here in dispute.” 2016 T. C. Sum. Op. 5, at p. 10.

So if it was payback time for Jim and Angie, now it’s payback time for IRS.

Oh yes, STJ Lewis lets Jim and Angie off the accuracy chops.

You’ll no doubt remember my recent discussion about assigned counsel in Tax Court, which Judge Kerrigan assured us does not exist, but which assurance Judge Julian I Jacobs seemed to contradict. See my blogpost “Assigned Counsel?” 1/6/16.

To resolve this apparent contradiction, I attempted to reach Olena Ruth, Esq., who seemed to stand in as assigned counsel in the blogpost aforesaid, and who incidentally seems to be a follower of this my blog. I have to date received no reply, so my perplexity continues.

Confusion worse confounded, Ch J Michael B (“Iron Mike”) Thornton seems prepared to appoint IRS counsel to give legal advice to the petitioner in Sacha E. Higham, Docket No. 22071-15L, filed 1/27/16, as Tax Court comes in from the snow, three hours late according to its website.

Apparently Sach wants to have the petition dismissed in this review of a NOD from a CDP. We know Sach can do that. And IRS says OK.

But something about the case gave Ch J Iron Mike pause, so he orders the parties to talk it over.

All right, so what is the problem?

This: “Respondent shall undertake to discuss fully with petitioner the consequences to petitioner if the Court were to dismiss this case.” Order, at p. 1.

How any attorney can discuss a legal conclusion (which in this case must include an element of legal advice) with an unrepresented adversary, or even communicate with such a one, otherwise than to tell them immediately to retain counsel, eludes me. Rule 4.3 of the Rules of Professional Conduct seems clear enough to me. “The lawyer shall not give legal advice to an unrepresented person other than the advice to secure counsel if the lawyer knows or reasonably should know that the interests of such person are or have a reasonable possibility of being in conflict with the interests of the client.”

So again I ask: does Tax Court provide assigned counsel?

I take my text from Francis Bret Harte’s short story. Once again 400 Second Street, NW is “snowed in.”

So I go back to the New York State Bar Association Tax Section’s afternoon session.

Up in Westbury

The “S”s have it, as Westbury reportedly kicked off its small-claimer calendar call today, 1/25/16, on schedule, while the Mother Ship at 400 Second Street, NW, remains behind closed doors and inoperative.

So nothing from me today. My readers’ time is valuable, so I won’t pad this blog with off-topic clickbait.

Tax Court’s website advises early closing today, January 22, at 12 Noon, because of massive snow job. So grab your Wellies and snowblowers, Capitolists. I’ll be back Monday.