When resources are scant and time is short, one would be more than human if one didn’t resort to the quick fix. Even if we know the Rule of Three, we fall for the quick fix.

The Rule of Three? There are three problem-solving desirables: fast, cheap, and good. You can have two of them, but not all three. For example, cheap and good is not fast. Fast and good is not cheap. Fast and cheap is not good.

But IRS, despite the latest infusion of cash, allegedly to reduce inflation, still goes for quick and cheap. Section 7456(b) is a drop-the-bomb sanction against offshores. If any offshore doesn’t cough up documents ordered by Tax Court, Tax Court must strike pleadings, toss petitions altogether, or “render judgment by default.” Of course, Tax Court enters decisions, it doesn’t render judgments; even though relief is styled as declaratory judgment, summary judgment, default judgment, or judgment on the pleadings, what you get is a decision.

Accipitor Trading, Ltd., Docket No. 18842-19, filed 10/25/23, is a BVI Corp, whose sole director is a citizen of Liechenstein. Accipitor didn’t bother to file US tax returns for twenty (count ’em, twenty) years, so IRS gave Accipitor two tranches of SNOD, one for about a million (chops in), and the other for about $800K (ditto), relating to Section 881 rental real estate activity. And alternatively, IRS claims Accipitor owes tax on $53 million in unexplained bank deposits.

Judge Travis A. (“Tag”) Greaves ordered Accipitor to hand over documents. Accipitor says it did, IRS says it didn’t, and wants pleadings struck and default judgment. IRS says BVI law requires Accipitor to have these documents, so they ought to have them, and hand them over.

“Our Rules require that a party responding to discovery make a ‘reasonable inquiry’ before submitting a response. Specifically, Rule 70(g) requires the attorney to certify, to the best of their knowledge formed after a ‘reasonable inquiry,’ that the response is consistent with our Rules, not made for an improper purpose, and not unreasonable or unduly burdensome given the needs of the case. Rule 104(d) provides that ‘an evasive or incomplete * * * response is to be treated as a failure to * * *respond’. However, when counsel for a responding party signs a response to a discovery request, they are not certifying that every document has been produced. They are certifying that they made a reasonable inquiry and the response is complete to the best of their knowledge. Here, as evidenced by Exhibit 1 to the declaration of respondent’s counsel LDS regarding the Documents Motion, petitioner’s counsel made the certifications required by Rule 70. Further, in its Opposition to the Documents Motion, petitioner repeatedly states that it has produced all responsive documents and that no further responsive documents exist.

“While we appreciate respondent’s view that additional documents ‘should exist’, it does not mean that such documents do exist. Petitioner’s alleged failure to comply with BVI record keeping requirements is an issue to be addressed by the BVI authorities.” Order, at p. 6. (Name omitted).

There’s argy-bargy about responses to interrogatories and inconsistent testimony by the Liechenstein director in a completely different proceeding, but that can be developed on the trial, as can Accipitor’s somewhat casual recordkeeping, both at to BVI and IRS standards.

Once again, the Rule of Three: fast and cheap is not good.

A couple orders (hi, Judge Holmes) caught my eye today, each too small to warrant a full-dress post.

First up, Estate of Pearl B. Kalikow, Deceased, Eugene Shalik, Executor & Edward M. Kalikow & Laurie K. Platt, Limited Administrators, Petitioners, Docket No. 14436-10, filed 10/24/23. Final deficiency in estate tax $3,653,939.00. Hopefully somebody deposited enough to stop interest running; with a thirteen-year-old docket number, you could get an eight-figure bill. For the backstory, see my blogpost “Where There’s a Will,” 2/27/23.

Next, Steven Feller & Louise Feller, Docket No. 11581-20, filed 10/24/23. Backstory in my blogpost “Positively Farcical,” 8/2/23.  I won’t weary my readers with yet another discovery joust. Only one point: Steve & Louise sold the Sub S wherefrom they took the Qualified Research Credits at issue, and say they have none of the paperwork IRS wants (and it’s bagsful). The new owner has it all. Taishoff says that’s SOP when you buy a business. However, “Petitioners note that the current owner of Feller PE [the Sub S] expressed a ‘willingness to make his team and the records available to assist both parties with this case, and to meet their burden and to save judicial resources and costs.’

“The record does not indicate whether petitioners have worked with Feller PE to obtain respondent’s requested documents.” Order, at p. 2.

Judge Christian N. (“Speedy”) Weiler, currently the discovery guy, says not having documents IRS reasonably wants is an excuse only when the documents are destroyed or in hostile hands. So get them from your obliging buyer. That saves third-party subpoenas.

Finally, Pradeep Kumar Xplorer, Docket No. 15791-23, filed 10/24/23, objects to having his case dismissed for duplication with another case dismissed for duplication with a third case. Xplorer’s problem is he can’t find the NOD from the CDP he’s petitioning. So he wants Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan to find it for him, as “your tax court will have easy access to it.” Order, at p. 2. And while Ch J TBS is at it, would she contact Xplorer’s ex-wife, with whom he’s had no contact since 2007, and ask her to phone him (number supplied). Order, at p. 1, footnote 2.

Ya can’t make this stuff up.

Ch J TBS tells Xplorer he has BoP: no NOD, no case. And his requests are frivolous, so he can lose his e-filing privileges if he persists.

Last known address is a recurring theme when SNODs are on the program. Mailing to last known address satisfies Section 6212, whether or not the addressee actually receives the SNOD. Misdelivery by USPS is no excuse, and USPS failure to follow a change of address notice is no excuse, provided only that IRS used reasonable diligence in determining the last known address as at date of mailing.

Thus Anthony W. Santiliz Traviza & Marili Rodriguez Ramos, Docket No. 12783-21, filed 10/24/23, are out, despite USPS’ alleged failure to honor the change of address notice AWST says he filed.

STJ Adam B. (“Sport”) Landy tells the story.

“Section 301.6212-2(b)(2)(i) of the Treasury Regulations state that the IRS will update taxpayers’ addresses maintained in IRS records by referring to data accumulated and maintained in the USPS National Change of Address database (the NCOA database). This regulation further states that if the taxpayers’ name and last known address in IRS records match the taxpayers’ name and old mailing address contained in the NCOA database, the new address in the NCOA database is the taxpayers’ last known address, unless the IRS is given clear and concise notification of a different address. If the address maintained in IRS records is updated based on information obtained from the NCOA database, that address will be the taxpayers’ last known address until the taxpayers file and the IRS processes a federal tax return with a different address from the NCOA database, or the taxpayers provide the IRS with clear and concise notification of a change of address. Treas. Reg. § 301.6212-2(b)(2)(ii). The burden is on petitioners to show that the Notice was not sent to their last known address. However, the Commissioner must also exercise reasonable diligence in determining petitioners’ last known address in light of all relevant facts and circumstances at the time the notice of deficiency is mailed.” Order, at p. 4. (Citations omitted)(emphasis by the Court).

Tucked away discreetly at the top of page 14 of the current (2022) Instructions for Form 1040 is a wee paragraph that reads as follows: “If you plan to move after filing your return, use Form 8822 to notify the IRS of your new address.”

Form 8822 is online fillable, and comes with easy-to-follow instructions. It even tells the taxpayer “(T)he use of this form is voluntary. However, if you fail to provide the Internal Revenue Service with your current mailing address, you may not receive a notice of deficiency or a notice and demand for tax. Despite the failure to receive such notices, penalties and interest will continue to accrue on the tax deficiencies.” Form 8822, at p. 2.

Takeaway 1- When you file a change of address with USPS, send a completed Form 8822 by certified mail to the address specified in the instructions; keep the certified mail receipt and a copy of the completed Form 8822. And tell ’em Taishoff sent ya.

Takeaway 2- Like much of my advice, those who need it won’t read it, and those who read it don’t need it.

Or, Stall Your Case at Discovery

Trawling for taxpayer information brings out an entire fleet. The latest addition is Alan Michael Berkun, T. C. Memo. 2023-127, filed 10/23/23. Alan is fighting five (count ’em, five) years’ worth of Section 6663 fraud chips, coming off a copped Section 7206(1) false return plea, with hefty restitution, but with the usual “we can audit you civilly and go for fraud” out for IRS in the plea.

So IRS wants $3.3 million from Alan, including $1.4 million in fraud chops.

Alan went down as part of a CID investigation that involved other parties as well, and ended up with a Federal grand jury in SD FL, whence the cop. Defending the fraud chops, Alan’s trusty attorney wants the grand jury minutes. IRS already had them from USDCSDFL, per Fed. R. Crim. P. 6(e). Although Alan resisted the handover, 11 Cir OK’d it.

Two (count ’em, two) years of Tax Court motion practice followed. IRS handed over some of the stuff as pertained to Alan, but claimed “… that certain materials constituted third-party returns and that return information is shielded by section 6103. The Commissioner also pointed out that the ‘third-party records include not only the records of the third-party targets but also records of additional third parties obtained as part of the third-party targets’ investigation.’” T. C. Memo. 2023-127, at p. 3.

IRS claims they’ve given Alan everything that relates to his situation and anyone in a “transactional relationship between a person who is a party to the proceeding and the taxpayer which directly affects the resolution of an issue in the proceeding.” Section 6103(h)(4)(C). The parties agree that is true.

The question now is whether the proceedings against Alan “arose out of, or in connection with, determining civil or criminal tax liabilities” of the third parties, per Section 6103(h)(4)(A).

That means some logical or causal connection, otherwise the phrases have no limit.

Judge Patrick J (“Scholar Pat”) Urda finds “return information” covers whatever IRS has; although the Circuits disagree about whether that means returns only or everything, 11 Cir is silent. See T. C. Memo. 2023-127, at p. 5, footnote 3.

But the USDCSDFL order releasing the grand jury stuff specifically kept the stuff under Section 6103 wraps. Alan claims releasing to the grand jury isn’t covered by Section 6103; so what, says Scholar Pat, you’re asking for the stuff from the IRS, and they’re definitely covered by Section 6103. Besides, there are two separate groups covered by the grand jury materials.

“In this case we have two distinct classes of third parties whose returns and return information are at issue: (1) the third-party targets of the IRS’s criminal investigation (and later grand jury investigation) and (2) the third parties whose returns and return information were swept up in the course of these investigations. The civil or criminal liability of the former category was plainly being determined in the investigations. Third parties in the latter category, on the other hand, were essentially bystanders whose information was gathered in the course of determining others’ liabilities. As the records of these third parties were not obtained in the course of determining their civil or criminal tax liabilities, section 6103(h)(4)(A) would not operate to authorize disclosure.” T. C. Memo. 2023-127, at p. 9.

As for the non-swept, Alan can’t show a sufficiently close relationship between them and Alan’s case. Determining their tax liabilities is insufficiently close to determining Alan’s.

Alan loses.

Or does he?

We are seven (count ’em, seven) days away from the sixth anniversary of the commencement of this case, and discovery is not yet complete.  The $1.9 million in tax that Alan allegedly owes, to say nothing of the $1.4 million fraud chop, remains uncollected. Yet Alan’s trusty attorney has consumed not fewer than two years in leading the Court and IRS down this fascinating intellectual rabbithole.

I think I shall create a new category of blogposts: Stall Your Case At Discovery.

Stephen R. Kelley and Isabelle Kelley, T. C. Memo. 2023-126, filed 10/23/23, have a bunch of additions to the defiers’ toolkit. Oil geologists by trade, they drill down through the AUR system to find want of Boss Hossery; they scoop out the Classification Act of 1923, ch. 265, 42 Stat. 1488, the Revenue Act of 1938, ch. 289, § 22(a), 52 Stat. 447, 457, and Individual Income Tax Collection Bill of 1943, H.R. 2218, 78th Cong. (an amended version of which was enacted as the Current Tax Payment Act of 1943, ch. 120, 57 Stat. 126), to escape tax on “compensation” and of course try the old FICA Title B “includes” argument.

I’ll leave it to you to follow Judge Elizabeth A. (“Tex”) Copeland as she brush hogs her way through this “significant amount of research into current and historical tax law.” T. C. Memo. 2023-126, at p. 17. Except of course Steve and Isabelle lose.

IRS miscues on the nonfiling chops, first asserting substantial understatement (Section 6662(b)(2)) in the SNOD, but withdrawing that in the answer because of want of Boss Hossery. But the answer asserted accuracy/negligence/disregard (Section 6662(a), b(1)), and was signed off by both examiner and immediate supervisor. Steve and Isabelle claim that wasn’t the first assertion of a penalty. All penalties, they say, are part of one overarching penalty; first in time covers all.

“The Kelleys’ interpretation would give carte blanche to IRS officials to assert additional causes under section 6662(b) after a supervisor approved a penalty under one or more other causes. For instance, an IRS revenue agent might get approval to penalize a taxpayer by reason of section 6662(b)(1) (negligence or disregard of rules or regulations) but, upon receiving convincing rebuttal from the taxpayer, assert a penalty by reason of section 6662(b)(3) (substantial valuation misstatement)—perhaps even enhanced to a 40% penalty for gross valuation misstatements under section 6662(h). If the Kelleys are correct, then the revenue agent would not need further supervisory approval for the second penalty assertion, because the second penalty would be the ‘same’ as the first (approved) penalty.” T. C. Memo. 2023-126, at p. 9. This would undercut Congress’ policy that penalties were not to be used as bargaining chips.

I expect we’ll see variations on these themes in future.

“…the law is a ass — a idiot.” Thus spake Charles Dickens, in the voice of Mr. Bumble in Oliver Twist (1838). Current expert opinion is that the phrase is certainly not original with Dickens, and probably dates earlier than 1620, in a work much less famous.

Howbeit, we find again that, when Tax Court discovery takes the field, the relevance objection to a demand for documents is irrelevant. Counterintuitive (to be polite), but there it is. See Green Valley Investors, LLC,, Bobby A. Branch, Tax Matters Partner, et. al. , Docket No. 17319-19, filed 10/23/23.

Bobby’s trusty attorneys have been adept at playing the “win your case at discovery” gambit, and here they persuade Judge Christian N. (“Speedy”) Weiler, not conspicuously a fan of such tactics, to give them one out of 34 (count ’em, 34) challenged IRS discovery responses.

Bobby wants copies of all drafts of the FPAAs “issued to the Partnership.” Order, at p. 3. I’m not sure who the “Partnership” is, as we have three (count ’em, three) LLCs consolidated here, and no showing that any or all of the three were partners one with another.

Whatever, IRS claims Greenberg’s Express says the past isn’t even prologue; FPAAs are TEFRA SNODs, so trial is de novo.

But Judge Speedy Weiler lets it in.

“In Request 25, petitioner seeks all drafts of the FPAAs issued to the Partnership. Respondent objected to the Request in his response on the grounds of relevancy, citing Greenberg [sic] Express. However, the Court finds respondent’s relevancy objection to this Request to improper [sic; I think you meant “to be improper”, Judge]. Accordingly, the Court overrules respondent’s objection and will order respondent to provide a supplemental response to this Request.” Order, at p.3.

I wish we had more enlightenment. Is it because this “response appears reasonably calculated to lead to discovery of admissible evidence,” per Rule 70(b)(2)? If so, is that admissible evidence related to the Section 6751(b) Boss Hoss sign-off?

I suggest this because of a sentence at Order, p. 1. “The Interrogatories and Requests primarily relate to respondent’s burden of production and the IRS’s compliance with section 6751(b).” (Footnote omitted, because it’s missing from the text of the Order as it appears on the Tax Court website). At Order, p. 2,  IRS says they can’t find the Form 5701 Notice of Proposed Adjustment they issued, so can’t establish the magic first time penalties asserted.

Now Bobby sought trial in Birmingham, AL, which is 11 Cir. And all y’all will recall that 11 Cir followed 9 Cir, holding in Kroner v. Com’r, No. 20-13902, filed 9/13/22 that Boss-Hoss-anytime-before-assessment is the rule. And here the petition stayed assessment per Section 6213(a).

So IRS could end this kerfuffle by Boss Hossing the whole shebang right now.

And that would definitely make relevance irrelevant.

Judge Patrick J (“Scholar Pat”) Urda adds yet another entry to my “Don’t Ambush” series, an ongoing project. Here, it’s the Dixieland Boondockers of Meriwether County, GA, (and no, I don’t know where that is, either) Rock Bottom BBS, LLC, Barnett Properties, Tax Matters Partner, Docket No. 9145-21, filed 10/20/23.

IRS wants to amend their pleadings less than 90 days before trial to “…allege (1) ‘disguised sales of Rock Bottom’s property, upon which Rock Bottom’s conservation easement was placed,’ and (2) ‘that the transfer of property by Hill Creek LLC to Rock Bottom was not, in substance, a bona fide transfer, failing to transfer the benefits and burdens of ownership.” Order, at p. 1.

Except IRS claims that the amendment is unnecessary, since the FPAA is sufficient notice. Judge Scholar Pat blows that one off.

“In short, it was incumbent on the Commissioner to determine at a much earlier stage (e.g., in the March 2021 FPAA, or the October 2021 answer, or the January 2023 interrogatory response, or unequivocally in the May 2023 letter along with a either a motion to amend or a supplement to contention interrogatories) if he wished to assert these new contentions, so that the parties could properly contest them at trial.” Order, at p. 5.

Back in December, Judge Scholar Pat ordered IRS to identify the legal and factual bases whereupon they rested the FPAA, and to give the Rockers full, complete and responsive answers to their interrogatories, within two (count ’em, two) weeks. But it wasn’t until May this year that IRS’ counsel sent the Rockers’ counsel a letter saying IRS might maybe so could be raising something or other.

“…the letter did not reference the bona fide transaction issue whatsoever, and we struggle to see how it could be seen to apprise Rock Bottom of the Commissioner’s intention to raise it. More significantly, the letter sounded an uncertain trumpet; it did not state that the Commissioner would raise the identified issues, but merely that he may raise such issues. This point is underscored by the fact that the Commissioner ultimately decided not to raise two of the three issues referenced in that letter. Further, the Commissioner indicated in the letter that he ‘plan[ned] to file motions for leave to file amendments to . . . answer to raise these issues’…, but did not do so for an additional four months. Order, at p. 5.

But Judge Scholar Pat really lays it out, in language practitioners can relate to.

“In these circumstances, we do not believe that Rock Bottom could be fairly expected to reserve some of the last precious weeks before trial to prepare for issues that were not yet before the Court—and perhaps never would be.” Order, at p. 5.

And, Taishoff adds, either eat the billables for that (possibly useless) prep work, or bill the client therefor, which would be unjust. And all that while I’m preflighting and woodshedding my witnesses, and triple-checking the trial notebook.

But Judge Scholar Pat served as counsel to the Deputy Assistant Attorney General in DOJ Tax Division, litigated over eighty (count ‘em, eighty) tax appeals, appearing in all CCAs, appeared before the Supremes, and was a five-time winner of DOJ Tax Division’s distinguished attorney award. He received IRS’ Michael Rogovin award.

So, while you can take the lawyer out of DOJ, you can’t take DOJ out of the lawyer.

“Before concluding, we note that the allegations the Commissioner seeks to raise are intertwined with issues properly before us. If, in the trial of those properly raised issues, evidence was to come out that might support the Commissioner’s contentions, then our current denial of his motion to file an amendment would not preclude him from seeking to conform the pleadings to the evidence at trial as appropriate.” Order, at p. 5.

Fortunately, the trusty attorneys for the Rockers are a canny squad, and I expect many objections to IRS’ attempt to wild-card in this stuff on the trial.

Judge Elizabeth A. (“Tex”) Copeland dismissed the plea of Marc Alessandro, Docket No. 1099-23L, filed 10/20/23, that  “[a]ny tax lien or levy would cause [Mr. Alessandro] to lose his license [as a financial planner] and would then [cause him to] lose his ability to earn income.” Order, at p. 4.

Judge Tex Copeland gave as her reason “so far as we can discern, FINRA does not require licensed financial planners to report tax levies….” Order, at p. 5.

May I most respectfully suggest that the Court look at FINRA Form U4, at pp. 14 and 33? A source tells me that the judgment and lien information from the Form U4 as to any registrant may be released to the public, per FINRA Rule 8312. This may negatively impact employment of the registrant.

My information may be a wee bit rusty, as I never served as a FINRA arbitrator, since in 1998 FINRA took over arbitration proceedings from the old Municipal Securities Rulemaking Board. So any reader with fresher information, please weigh in.

Howbeit, as Mr. Alessandro did not submit Form 433-A and backups, all this may be moot, and not worth a motion for reconsideration.

Martin G. Plotkin, T. C. Memo. 2023-125, filed 10/19/23, is back for Appearance No. 4 (count ’em, four) on this my blog. Judge Morrison can walk you through the procedural mish-mash that concludes today. I’ll not try; Martin’s ingenuity and Appeals’ missteps would defy even Campbell’s ability to condense.

At the end of the trail, Appeals issues a second supplemental NOD on the sole issue whether Martin is eligible for CNC. He isn’t, because he did not submit Form 433-A and backups.

Martin says Appeals abused its discretion because he never asked for CNC status. But he got this remand because he had told the AO that all his income was Social Security so he couldn’t pay, hence Appeals failed to balance intrusiveness of levy with ability to pay.

“… petitioner argued that the determination by Appeals regarding the balancing test was inconsistent with the proposition that ‘[p]etitioner’s only income came from his Social Security Benefits, which were insufficient to provide for any payment of the liability.’ We agreed with petitioner’s argument inasmuch as we withdrew the portions of the April 2019 Memorandum Opinion holding that Appeals did not err in applying the balancing test of section 6330(c)(3)(C) because of petitioner’s failure to submit the requested financial information.” T. C. Memo. 2023-125, at p. 6.

But the sole issue on remand is whether Martin’s only income is Social Security. Hence IRM 5.16.1.2.9(1)–(5) (May 22,2012), which says, if petitioner can show this, where only income is from Social Security, that means hardship, .

Since Martin said several times he couldn’t pay, CNC consideration was appropriate.

“The corollary to petitioner’s argument that financial information should be required only for taxpayers who request CNC status is that no such information should be required for Appeals to apply the balancing test under section 6330(c)(3)(C). This argument is unavailing. Looking at the second supplemental notice of determination through the lens of section 6330(c)(3)(C), we discern no abuse of discretion by Appeals. The second supplemental notice of determination concluded that petitioner refused ‘to provide the information required’ and that therefore it was Appeals’ judgment that ‘the Notice of Intent to Levy balances the efficient collection of taxes with your legitimate concern that the collection action be no more intrusive than necessary.’” T. C. Memo. 2023-125, at pp. 15-16.

If you claim hardship, you must prove hardship. Whether your avowed remedy is CNC or not, CNC is your remedy. The back taxes don’t go away.

That is the question, the answer for which Judge Christian N. (“Speedy”) Weiler needs a trial, in A.C.M.E., Docket No. 3327-22, filed 10/19/23.

IRS wants summary J, of course. Problem is, A.C.M.E. claims that what IRS calls prepayments, and therefore taxable in year of receipt even though prepaid services aren’t delivered until later, are really deposits. It comes down to who controls the money once the recipient gets it: has the payor a present right to get it back, or has the recipient got complete domination?

The guiding light is Indianapolis P&L, 490 US 203 (1990). And it looks like IRS is leading on paper, but A.C.M.E. points to some givebacks.

“…factors such as control over deposits (i.e., absence of a trust fund), unrestricted use, nonpayment of interest, and later application of the moneys to services are probative but not dispositive in evaluating the existence of complete dominion.” Order, at p. 5. (Citation omitted).

A.C M.E. never raised equitable recoupment in its pleadings, bur raises it for the first time in its opposition papers. That’s a Rule 39 no-no.

“The doctrine requires a party to prove the following elements: (1) the overpayment or deficiency for which recoupment is sought by way of offset is barred by an expired period of limitation, (2) the time-barred overpayment or deficiency arose out of the same transaction, item, or taxable event as the overpayment or deficiency before the Court, (3) the transaction, item, or taxable event has been inconsistently subjected to two taxes, and (4) if the transaction, item, or taxable event involves two or more taxpayers, there is sufficient identity of interest between the taxpayers subject to the two taxes that the taxpayers should be treated as one. ” Order, at pp. 5-6.

More to the point, IRS hasn’t convinced Judge Speedy Weiler that complete dominion over the money has gone from the cherrypickers who deal with A.C.M.E. to A.C.M.E.

“We have reservations ruling on the disallowance of these prepayment accounts of $4.8 million and $2 million in 2015 and 2016, respectively, as well as the inclusion of the entire beginning accounts payable credit balance of $34 million as income for 2015, through summary judgment and without understanding the full impact of these adjustments to other taxable periods. Petitioner now seeks to raise the issue of equitable recoupment and furnished a sworn statement indicating how these adjustments would result in the inclusion of some $38 million in income reported in tax years 2018 and 2019, which are now closed. Although the issue of equitable recoupment is not properly before us; at a minimum, petitioner has created a material issue of fact, precluding summary adjudication of these ‘prepayment’ issues.” Order, at p. 6. (Footnote omitted).

IRS wanted either a five-and-ten substantial understatement chop, or a straight negligence chop,  but furnished no Boss Hossery, so no summary J on chops.

A.C.M.E. didn’t contest disallowance of some outside services deductions, or disallowance of an NOL carryforward, but IRS doesn’t get those either. “In denying the principal relief sought by respondent, it is unclear whether the purpose of summary judgment would be accomplished here, by us ruling on these additional issues in a piece meal fashion. Accordingly, we refrain from ruling on these remaining issues.” Order, at p. 7. (Citation omitted).

A.C.M.E’s trusty attorney should applaud Judge Speedy Weiler’s goalmouth saves, worthy of Vladislav Aleksandrovich Tretiak at the top of his form; the dollar amounts those deductions were worth are not stated, but they can’t have been pennies.