Sealing Cases or Documents in Tax Court

We welcome back guest blogger Bob Kamman. Bob practices in Phoenix. He writes today about sealing the record in the context of a whistleblower case. The Tax Court faces this request in other contexts as well and we have covered the issue before here and here. Bob also raises some general privacy issues at the end of his post that deserve attention. Keith

We know that sometimes the government will ask that a case it files be sealed until later developments make public disclosure appropriate. In Tax Court, the government never files the case, but there are circumstances when the petitioner can ask for privacy or secrecy.

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In recent years, most of these sealed cases involve “Whistleblowers” who claim that they are owed an award under Section 7623 for helping the IRS collect from taxpayers who otherwise would have escaped detection. In a ruling last June, the Tax Court ruled that such whistleblowers are not always entitled to confidentiality. That case is still sealed, suggesting that it has been appealed. According to a footnote, “At least four United States Courts of Appeal have held that orders denying leave to proceed under a pseudonym are immediately appealable as collateral orders.”

Not every whistleblower is anonymous. However, even when the petitioner’s name is disclosed, the name of the taxpayer to whom the claim relates must be sealed. That was the point of this April 2017 order in the James Awad case.

Aside from whistleblower cases, when will the Tax Court consider sealing a case? That was reviewed in the Sport Card case (principal petitioners are the McWilliams), where the facts were:

Petitioner in No. 15049-12 filed his petition on June 12, 2012, to which was attached a notice of deficiency issued by the Internal Revenue Service (“IRS”) on March 15, 2012. Petitions in three related cases were filed later that same year, and the cases were consolidated in January 2014. The records in these cases were, as usual, open to the public pursuant to section 7461. Almost three years after the first petition was filed, petitioners first moved on June 5, 2015, for a protective order to seal the record in the consolidated cases, but they thereafter withdrew the motion. On January 27, 2017–four years and nine months after the first petition was filed (during which time the record has been open)–petitioners again moved for a protective order, again requesting that the Court seal the entire record in these consolidated cases, or, alternatively, that the Court seal the public electronic docket index available on the Tax Court website.

Judge Gustafson reviewed the applicable law:

Section 7458 provides that “[h]earings before the Tax Court and its divisions shall be open to the public”; and section 7461(a) provides that, “[e]xcept as provided in subsection (b), all reports ofthe Tax Court and all evidence received by the Tax Court and its divisions, including a transcript of the stenographic report of the hearings, shall be public records open to the inspection of the public.”

Section 7461(b) provides two exceptions. The latter (section 7461(b)(2)) may apply after the decision of the Tax Court has become final (which is not the case here.) The former, section 7461(b)(1), provides that “[t]he Tax Court may make any provision which is necessary to prevent the disclosure of trade secrets or other confidential information, including a provision that any document or information be placed under seal to be opened only as directed by the court.”

Tax Court Rule 103 (“Protective Orders”) provides in subsection (a) that, upon motion and for “good cause shown,” the Court may make any order which justice requires to protect a party or other person from annoyance, embarrassment, oppression, or undue burden or expense.

Common law, statutory law, and the United States Constitution generally support the proposition that official Tax Court records are open for public inspection. Willie Nelson Music Co., 85 T.C. at 917 (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)). “Nevertheless, the presumptive right to access may be rebutted by a showing that there are countervailing interests sufficient to outweigh the public interest in access.” 85 T.C. at 919.

And perhaps not surprisingly, Judge Gustafson then denied the motion to seal some or all of the case file:

Petitioners have failed to demonstrate such countervailing interests. While we assume correct the facts laid out in petitioners’ motion and supporting declaration, many of them took place years ago, and some of them apparently bear no possible relationship to this case or anything filed herein.

Two pending Tax Court cases where records are sealed illustrate these two branches of the exceptions to public access and disclosure.

The first branch is protection of trade secrets, which is the most likely reason that a major media organization, generally expected to be an advocate for open courts, has requested that the details of several related cases be sealed. The case, filed in February 2017, involves Bloomberg L.P., the financial news service whose majority owner is former New York City mayor Michael Bloomberg. (Bloomberg LP won a Freedom of Information Act case against the Federal Reserve Bank in 2010.)

In June 2017, IRS moved to unseal the petition and answer. That motion is still under consideration. Meanwhile, the petitioners have requested that the place of trial be changed from San Francisco, as it originally requested, to New York. The docket is here.

The second branch of Rule 103 is protection of “a party or other person from annoyance, embarrassment, oppression, or undue burden or expense.” That seems to apply in the case of a cable-television personality who filed his petition in July 2017, asking that the case be sealed.

The petitioner and his partner are surrogate parents of two children born in 2010 and 2011, the years involved in the Tax Court case, along with 2012. One might think that caused the privacy request, but those facts have been reported already, apparently with petitioner’s assistance, in People magazine and elsewhere.

The detail that caused the request for sealing is simply the petitioner’s home address, according to Judge Armen’s September 28, 2017 order.

Petitioner is represented by counsel, whose mailing address is part of the record. But as in all cases, the petitioner was required to attach a copy of the Notice of Deficiency to his petition, and presumably it shows his home address. Judge Armen explained:

Respondent contends in his aforementioned Response that the information petitioner seeks to keep confidential is “currently readily available to the public.” . . . In addition, the allegations made in the pending motion and the affidavit attached thereto may be described as general, non-specific, and conclusory in nature. On the other hand, a fair reading of petitioner’s motion indicates that the only matter that petitioner seeks to keep confidential is his street address, which is a matter that should have no bearing on the disposition of the substantive issues raised by respondent’s notice of deficiency and in the petition for redetermination.

So, Judge Armen approved a redacted petition, identical to the one filed under seal except for the home address, and ordered a redacted pleading from IRS that omits the address.

The exact location of the home might deserve greater protection because petitioner is an interior decorator and photos of his own home have been featured on the “Traditional Home” website.

Petitions and notices of deficiency are not accessible online, except by the parties themselves, but may be found by a visit to the Tax Court building in Washington, D.C. Petitioners are already instructed to expunge Social Security numbers from notices, returns and other evidence submitted to the Tax Court case file.   The SSN instead is listed on a separate filing that is not open for public inspection.

Is there some reason that one petitioner’s home address deserves protection, more so than another’s? Should counsel for Tax Court petitioners now ask their clients if they have a good reason to shield their address from the public? In some cases, the address is essential for a ruling on whether the Notice of Deficiency was mailed to the petitioner’s last-known address. But what would be the harm from adding home address to SSN on the separate filing that is not disclosed?

 

Tax Court Bridges Two Cases for Tallahatchie Couple

We welcome back guest blogger Bob Kamman who practices in the Phoenix area but who, prior to becoming a tax lawyer had a career as a writer. He goes back to his roots to provide us with a story playing out in the Tax Court and in rural Mississippi. 

Bob talks about status reports and remarks that only the IRS attorney responds to the status reports ordered by the Court. When I worked at Chief Counsel’s office I had several cases in which “the parties” were ordered to file status reports but that really meant the IRS attorney was ordered to file status reports because the petitioners never did and never suffered any consequences. I understand why the dance is done this way but never liked it. I also note that the Judge retained jurisdiction of this case over a multi-year period. He was not required to do so but does the parties a big favor by hanging on to the case and working it to resolution. Keith

William Faulkner never wrote a story about a Tax Court case. But if he had, he might have told one much like the saga of Dale and Marla, now in its fourth year and reminding us how events can happen at the intersection of tax procedure and real life.

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Dale and Marla filed a joint return for 2011. When their petition is filed in June 2014, they are residents of Tallahatchie County, in the part of Mississippi where many of the events in Faulkner’s novels take place.   But they no longer live together; they have divorced, and Marla has remarried. Dale (he goes by this, his middle name) is employed as an electrician and Marla is a “medical professional.” The petition, filed with a small tax case “S” designation, is assigned to Judge Joseph Nega, who assumed the bench just nine months earlier. His tenacity is a model for those who admire efforts to move cases along. And for tax professionals, there is a lesson here about Tax Court Rules 61(b) and 141(b), which are infrequently applied.

A trial date is set for down in Jackson on June 15, 2015. But a few weeks earlier, the Court receives a letter with shocking news from a lawyer over in Coahoma County.   Dale has died.

A news account from the next day tells more of this death in Tippo (65 miles southwest of Faulkner’s long-time home of Oxford). Dale, 33, was murdered, allegedly by his girlfriend Mandy. The obituary tells us he was buried from the same funeral home where he had served as pallbearer for his grandmother, three weeks earlier.

Of course the trial is continued, and the parties are ordered to file a status report by July 13, 2015. As is usual with Tax Court cases involving a deceased petitioner,

“The status report shall also include after appropriate investigation, (1) the parties are in a position to confirm whether an estate with respect to petitioner [Dale] has been, or will be, opened, and if so, any details of the same, (2) whether there has been an appointment of a representative on behalf of decedent, and if so the name and address of such individual, and (3) the names and addresses of the heirs at law of [Dale], and (4) provide a copy of [his] death certificate.”

IRS files its status report on July 13, 2015. Judge Nega orders another status report for September 14, 2015. IRS tells the Court on August 20, 2015, that Dale’s father Roger has been appointed Special Administrator by the Chancery Court. There is only one heir: Dale’s 13-year-old daughter from a previous marriage. Her grandfather is now responsible for her inheritance, after payment of tax debts.

The caption of the case is amended to reflect that Dale is deceased. Another status report is ordered for November 2, 2015.

When IRS files that status report, Judge Nega orders another one for January 5, 2016. When that one is filed by IRS, another one is ordered for April 5, 2016.   When that one is filed by IRS, another one is ordered for June 10, 2016. All of the status reports are filed by IRS; Marla and her former father-in-law may be communicating with the IRS attorney, but are not reporting to Judge Nega.

Further status reports are ordered and received for August 5, 2016; September 30, 2016; November 21, 2016; March 24, 2017; and May 1, 2017. Judge Nega obviously does not want a Small Tax Case from 2014 cluttering his docket.

But the next chapter introduces a problem. Marla calls the IRS attorney on February 8, 2017 to report that Roger had been incarcerated. This development is added to the March 24, 2017 status report. Judge Nega orders yet another status report by June 20, adding:

The report shall also include any current information regarding Roger[‘s . . .] incarceration status (i.e., place of incarceration, prison term, and release date), and indicating the proposed disposition of this case, whether by agreed decision, motion, or submission by stipulation pursuant to Rule 122, Tax Court Rules of Practice and Procedure.

In the June status report, Judge Nega learns that Roger will be in a state prison until July 2021, assuming good behavior. He was sentenced to five years after his March 20, 2017 conviction in Tallahatchie County for manslaughter.

And if Judge Nega doesn’t already know the rest of the story, here is a Faulknerian tale. According to a March 16, 2017 news report — two years after it was reported that Mandy had killed his son Dale, and a few days before his 60th birthday — Roger pled guilty to shooting Mandy once on March 15, 2015, in the front yard of the home where she and Dale lived. According to an investigation by the Tallahatchie County Sheriff’s Office, Roger arrived there to find his son, dead of a single gunshot wound inside his vehicle in front of the house, with Mandy nearby. An autopsy later confirmed that Dale’s wound was self-inflicted.

Roger and the sentencing judge share the same surname, but the local newspaper does not report whether they are related. Faulkner might have liked that detail.

According to the August 4, 2017 status report, the incarceration of Roger prevents Marla from signing decision documents, and the delay causes her to accrue more interest on the 2011 return.

What do an IRS lawyer and a Tax Court judge do in a case like this? The right thing. Judge Nega tells us in his October 26, 2017 order:

On August 4, 2017, respondent filed a Motion To Sever requesting that the Court sever petitioner Marla . . . from the case at Docket No. 15231-14S, in accordance with Rule 61(b) and 141(b), Tax Court Rules of Practice and Procedure. Respondent explains that Roger . . . (the administrator of the estate of his deceased son, Dale . . .), is currently incarcerated in the Mississippi State Penitentiary and that his incarceration prevents petitioner Marla . . . from signing decision documents, which delay causes her to accrue more interest for taxable year 2011. Respondent indicates that petitioner Marla . . . has no objection to the granting of the motion.

So Judge Nega orders:

ORDERED that respondent’s motion to sever is granted, and Marla . . . is hereby severed as a petitioner from the case at Docket No. 15231-14S and is assigned Docket No. 22327-17S . . .It is further

ORDERED that jurisdiction of the case at Docket No. 22327-17S is retained by the undersigned. It is further

ORDERED that the filing fee for the case at Docket No. 22327-17S is waived, and Jackson, Mississippi is considered for purposes of the Court’s records the place of trial therein.

Tax Court Rule 61 is titled “Permissive Joinder of Parties,” but 61(b) deals with “severance or other orders.” It allows the Court to “make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party.” The Court “may limit the trial to the claims of one or more parties, either dropping other parties from the case on such terms as are just or holding in abeyance the proceedings with respect to them.”

Tax Court Rule 141 is titled “Consolidation; Separate Trials.” Rule 141(a) covers consolidation; Rule 141(b), separation.   The Court, “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition or economy, may order a separate trial of any one or more claims, defenses, or issues, or of the tax liability of any party or parties.”

We do not know the issues in this case, but it appears that Marla wants to settle them and pay whatever tax is owed. That, of course, will mean that her ex-husband Dale’s estate, still administered by his imprisoned father Roger, will not owe the tax. The ultimate beneficiary is Dale’s daughter (who is not related to Marla).

In Faulkner’s 1939 novel “Barn Burning,” a judge tells Abner Snopes, accused of burning down a barn, to leave the county and never come back.  Such a remedy is not available to Judge Nega, but perhaps after a few more status reports, it will turn out that sometimes two cases are easier to close than just one.

 

 

Undesignated Order Reports Ethics Problem

We welcome back guest blogger, and frequent blog commentor, Bob Kamman. Bob is a tax attorney practicing in Phoenix. Bob worked in several technical and administrative jobs in IRS Taxpayer Service during the late 1970s before leaving to study and practice law, and since then occasionally been involved in working with the IRS on taxpayer-rights issues. Frequent readers of the blog who regularly read the comments about our posts will find many insightful comments by Bob. He expresses concern today about something we have written about before which is what makes an order a designated order or an opinion precedential. He discusses an order which was not chosen by the judge issuing the order to be a designated order.  The title designated order does not give an order any greater status but does make it more likely to be noticed  Bob expresses the view that this is the type of order which should receive greater recognition since it involves attorney discipline.  

The Tax Court does have a mechanism for publicizing the actions it takes against attorneys. I have discussed a case before in which an attorney was disciplined for much the same type of action, or inaction, as the case discussed below. If you follow the link in that post where the Tax Court revoked the right to practice of Mr. Aka, you can see that the Tax Court does issue press releases when this happens. Bob raises an interesting question of whether orders in these type cases referring the matter to the Tax Court disciplinary committee should receive more attention. The issue of how and when to warn potential consumers is one that the IRS and the Tax Court must consider while balancing the rights of the practitioner against an ethics complaint that has been raised but not resolved.  Keith

Does the Tax Court have a duty to warn taxpayers about apparent ethical violations of lawyers who practice before it?

That is the question raised Monday by an undesignated order involving conduct by an attorney referred to the Court’s Committee on Admissions, Ethics, and Discipline.  The Tax Court issued more than 100 orders that day, but called attention by “Designation” to only one — not this one.

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If you rob a bank, the FBI will make sure the indictment is publicized, while acknowledging that you are innocent until found guilty in a court of law.  If you are a lawyer who does not show up in court so your client automatically loses, your behavior likewise deserves a greater degree of exposure than just an undesignated order.  Furthermore, shining a spotlight on cases like this would likely discourage such behavior by other practitioners.

Judge Gustafson did not see it that way. Here are excerpts from his order, which can be found in Docket No. 12194-16. I have removed the name of the lawyer and his clients.  They have enough problems without showing up in Google searches.

“On May 23, 2016, petitioners . . .filed a timely petition in this Court challenging the IRS’s notice of deficiency as to tax year 2013. The petition was signed by petitioners’ counsel . . .

“By notice served April 27, 2017, this case was scheduled to be tried at the Court’s session beginning September 18, 2017, in Detroit, Michigan, and the parties were to exchange exhibits and pretrial memoranda by September 1, 2017.

“However, on August 15, 2017, the IRS filed a motion to dismiss this case for failure to properly prosecute, alleging that [petitioners’ counsel] has been unresponsive and uncooperative in pretrial preparation. The Court immediately attempted to schedule a pretrial telephone conference with the parties, but [petitioners’ counsel] did not respond to voice-mail messages.

“By order served August 22, 2017, the Court ordered [petitioners’ counsel] to immediately telephone the Chambers of the undersigned judge (at 202-521-0850) for the purpose of scheduling a prompt telephone conference. Our August 21 order also directed the Petitioners to file with the Court and serve on the IRS a response to the IRS’s motion to dismiss, no later than September 5, 2017. The August 21 order were [sic] served on [petitioners’ counsel] and the Petitioners. [Petitioners’ counsel] and the Petitioners have filed no response.

“On September 7, 2017, the Court issued its order to show cause ordering [petitioners’ counsel] to appear at the calendar call on September 18, 2017, in Detroit, Michigan, and show cause why sanctions should not be entered under section 6672(a)(2) and why counsel should not be referred to the Court’s Committee on Admissions, Ethics, and Discipline. The Court’s September 7 order to show cause also advised the Petitioners to appear at the trial if they wished to continue to prosecute the case.

“On September 18, 2017, this case was called from the calendar at the Court’s Detroit, Michigan, trial session. There was no appearance by the Petitioners or [petitioners’ counsel], at the calendar call–or at any point during the trial session. The IRS appeared and was heard. The Court took under advisement the IRS’s motion to dismiss for failure to properly prosecute. As of this date the Court has received no response from [petitioners’ counsel], and the Petitioners have been nonresponsive despite our orders of August 21, 2017 (requiring them to file a response), and our order September 7, 2017 (advising them to appear at the trial session on September 18, 2017).

“The Court has an obligation to conduct its proceedings in a manner that secures the “just, speedy, inexpensive determination of every case.” Rule 1(d). A practitioner before this Court is required to carry out his or her practice in accordance with the letter and spirit of the Model Rules of Professional Conduct of the American Bar Association. Rule 201(a), Tax Court Rules of Practice and Procedure. Tax Court Rule 202(a)(3) specifically identifies as a ground for discipline any conduct that violates the letter and spirit of the Model Rules. For example, Model Rule 1.1 requires a lawyer to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Model Rule 1.3 requires a lawyer to act with reasonable diligence and promptness in representing a client. Model Rule 3.4(c) prohibits a lawyer from knowingly disobeying court rules and orders.

“[Petitioners’ counsel]’s failure to return the Court’s phone calls, noncompliance with the Court’s orders and rules, and his failure to appear when this case was called from the calendar at the trial session on September 18, 2017, are inconsistent with the obligations imposed upon him pursuant to the Court’s Rules of Practice and Procedure and the Model Rules of Professional Conduct of the American Bar association. . . .

“In view of the foregoing, it is . . .

“ORDERED that so much of the Court’s order to show cause why counsel should not be referred to the Court’s Committee on Admissions, Ethics, and Discipline, dated September 7, 2017, is hereby made absolute. It is further

“ORDERED that the IRS’s motion to dismiss for failure to properly prosecute is granted, and this case is dismissed for petitioners’ failure to properly prosecute this case. It is further . . .

“ORDERED AND DECIDED that there is a deficiency in income tax, an addition to tax, and penalty due from petitioners …as set forth in the notice of deficiency dated February 16, 2016,as follows:

Addition to Tax/Penalty Pursuant to I.R.C.
Year     Deficiency     §6651(a)(1)    §6651(a)
2013    $12,769.00     $2,554.00        $3,192.00″

 

 

TAX COURT UNDESIGNATED ORDERS, OCTOBER 2017

We welcome prolific and keenly observant commentator Bob Kamman as a guest blogger today. For long time readers of our blog who regularly read the comments, you know that Bob has posted many excellent comments on various pieces. He regularly digs further than I do on my posts to find really interesting facts about a case. His knowledge of tax procedure and his willingness to comment so frequently makes him a silent partner to this blog much like Carl Smith is a silent partner through his regular guest posts. Both have greatly enriched and added to what Les, Steve, and I have written. 

Today, Bob writes a post that digs into the undesignated orders of the Tax Court, of which there are many. From those orders he has culled a few that provide insight for those interested in tax procedure. The Tax Court’s order tab is a treasure that needs to be regularly mined and we thank Bob for doing this work and for reminding us of the information that awaits those who go looking at that tab. Keith

“Something there is,” Robert Frost wrote, “that doesn’t love a wall.”  To that I would add, we have our doubts about a barrier built by judges between Tax Court orders, separating those they consider noteworthy from those deemed unimportant.

Curiosity led me to review a few days of undesignated orders earlier this month, and what I found were dozens that are truly mundane and insignificant.  However, I also came across some that would be good material for the textbook that I will never write, “101 Ways To Screw Up In Tax Court.”

I do not propose a regular review of all undesignated orders.  However, it might make a good assignment for a law school procedural class.  Each student can read twenty and report on the best one.  A blog somewhere might share the results.

Here are excerpts from a few that I thought had some redeeming value.

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Docket No. 20199-17

On September 25, 2017, the Court lodged a Request for Place of Trial which improperly seeks to designate Cheyenne, Wyoming, as the requested place of trial in this case. The Court’s records reflect that this case is being conducted under the Court’s regular tax case procedures, and not the small tax case procedures. Only cases conducted under the Court’s small tax case procedures may be tried in Cheyenne, Wyoming. The petition filed to commence this case indicates petitioner is disputing a notice of deficiency. A petitioner may elect to have a case conducted under small tax case procedures only if the amount of deficiency placed in dispute does not exceed $50,000. See I.R.C. sec 7463(a).

Accordingly, Cheyenne, Wyoming, may not presently be designated as the place of trial. Rather, petitioner must either move to add small tax case designation to this proceeding (if it falls within the $50,000 limit explained above) or select an alternative city where regular cases are heard. General information explaining whether to elect regular or small case procedures is posted under the “Starting A Case” tab in the Taxpayer Information section of the Court’s
website at www.ustaxcourt.gov.

Premises considered, it is

ORDERED that, on or before October 25, 2017, petitioner shall file either a proper Request for Place of Trial designating a city at which this Court tries regular tax cases; or, if appropriate, a Motion To Add Small Tax Case Designation.

Docket No. 15074-17

The record in this case reflects that a notice of deficiency for tax year 2015 was sent by certified mail to petitioner’s last known address on April 4, 2017. Based on that mailing date, the last date to timely file a petition with the Court was July 3, 2017. Additionally, the notice of deficiency stated that the last date to file a petition with the Tax Court was July 3, 2017. The Court received and filed the petition on July 12, 2017. The petition was received in an envelope bearing a postmark date of July 6, 2017. Both the filing and mailing dates of the petition were after the last date petitioner could timely file a Tax Court petition with respect to the notice of deficiency for petitioner’s 2015 tax year.
In her objection to the motion to dismiss, petitioner essentially does not dispute respondent’s jurisdictional allegations. Petitioner, however, requests leniency from the Court with respect to the application of the time period for timely filing a petition. Petitioner states that she became confused about the deadline for filing a timely petition because she has received a large amount of correspondence from the IRS and, additionally, her assigned IRS taxpayer advocate provided her with an incorrect deadline for filing a Tax Court petition.

While the Court is sympathetic to petitioner’s circumstances and understands the inadvertent nature of petitioner’s error, we have no authority to extend the statutory period for timely filing. Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). Furthermore, to the extent that petitioner may be claiming that incorrect information from an IRS employee caused her to file an untimely petition, it is well settled that where the Commissioner’s representatives provide erroneous advice based upon a mistaken interpretation of the law, courts and the Commissioner are not bound by the agent’s statements and must follow the applicable statutes, regulations, and case law. See Dixon v. United States, 381 U.S. 68, 72-73 (1965); Auto. Club of Mich. v. Commissioner, 353 U.S. 180, 183 (1957); Neri v. Commissioner, 54 T.C. 767, 771-772 (1970).

ORDERED that respondent’s Motion To Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.

Docket No. 16536-17

An imperfect petition commencing this case was filed on August 3, 2017. On September 18, 2017, an amended petition was filed. Among other things, petitioner seeks review of a purported determination of worker classification allegedly issued to petitioner for 2016 and 2017. October 2, 2017, an Answer to Amended Petition (Index No. 0006) in this case was filed by respondent. A second duplicate Answer to Amended Petition (Index No. 0007) was electronically filed on October 2, 2017. In his Answers (Index Nos. 0006 and 0007) respondent acknowledges that a notice of deficiency dated July 6, 2017, was issued to petitioner for taxable year 2016, but respondent denies that this case is based upon a determination of worker classification issued to petitioner for 2016 and 2017.

Upon due consideration and for cause, it is

ORDERED that respondent’s Answer (Index No. 0007), filed on October 2, 2017, is hereby deemed stricken from the record in this case. It is further

ORDERED that, on or before October 25, 2017, respondent shall file an appropriate jurisdictional motion as to so much of this case relating to the determination of worker classification for 2016 and 2017.

Docket No. 11800-15, 11830-15

These consolidated cases are calendared for trial at the San Diego, California Session of the Court commencing on November 13, 2017.

On September 29, 2017, respondent filed a Motion for Order to Show Cause Why Proposed Facts and Evidence Should Not Be Accepted as Established Pursuant to Rule 91(f). Respondent requests the Court to order petitioners to show cause why the facts and evidence set forth in respondent’s proposed Stipulation of Facts, which was attached to respondent’s motion and marked “Exhibit A”, should not be accepted as established for purpose of these cases.

Respondent’s motion states that respondent’s counsel called petitioners’ counsel [name deleted] on September 29, 2017. The individual who answered the telephone at the law offices indicated that [he] was not available. Respondent’s counsel left a message that respondent would be filing two motions in these cases and that she would like to discuss the motions with [him]. The receptionist indicated that she would let [the attorney] know that respondent’s counsel called.

Respondent’s counsel subsequently received a voicemail message from petitioners’ counsel stating that petitioners would be responding to respondent’s Request for Admissions at a later date. Respondent’s counsel returned petitioners’ counsel’s telephone call. The individual who answered the telephone at the law offices indicated that [he] was not available. Because [the attorney] never returned respondent’s counsel’s call, she does not know petitioners’ counsel’s position with respect to respondent’s motion.

Giving due consideration to respondent’s motion and after reviewing the proposed Stipulation of Facts, it is hereby

ORDERED that respondent’s Motion to Show Cause is granted, and petitioners shall file on or before October 18, 2017, a response in compliance with the provisions of Rule 91(f)(2) showing why the facts and evidence set forth in respondent’s proposed Stipulation of Facts, marked Exhibit A, should not be deemed accepted as established for purpose of these cases. If petitioners do not file a response by October 18, 2017, or if petitioners’ response is evasive or not fairly directed to all matters in the proposed Stipulation of Facts, or any portion thereof, that matter or portion to which the response is evasive or not fairly directed will be deemed stipulated for purposes of these cases, and an Order will be entered accordingly pursuant to Rule 91(f)(3).

Docket No. 16931-17S

The record reflects that respondent mailed a notice of deficiency to petitioners for 2015 on May 8, 2017. The 90-day period under I.R.C. section 6213(a) for filing a timely petition as that notice expired on August 7, 2017. The petition, filed August 9, 2017, arrived at the Court in an UPS shipping envelope bearing a UPS Next Day Air label bearing Tracking #1Z0314330167665538. That petition had been mistakenly mailed by petitioners on August 4, 2017, to the IRS in Andover, Massachusetts. The IRS in Andover, in turn, forwarded that petition via UPS Next Day Air to the Tax Court, in Washington, D.C., on August 8, 2017– one day beyond the 90-day filing period.

ORDERED that respondent’s Motion To Dismiss for Lack of Jurisdiction, filed September 11, 2017, is granted and this case is dismissed for lack of jurisdiction.

Docket No. 9239-17

On May 2, 2017, the Court ordered that on or before June 16, 2017, petitioner was to file the disclosure statement required by Rule 20(c), Tax Court Rules of Practice and Procedure.

On May 23, 2017, petitioner did file a disclosure statement with the Court. That statement is not complete in that it does not set forth the information required therein. For example, the disclosure statement requires petitioner, if it is a nongovernmental corporation, to provide the names of, inter alia, “[a]ll parent corporations, if any, of petitioner, or state that there are no parent corporations”.

Petitioner did not provide in the disclosure statement that it filed the names of any parent corporations; nor did petitioner indicate in that statement that there are no parent corporations, as required by the disclosure statement.

After due consideration and for cause, it is

ORDERED that petitioner shall file an amended disclosure statement which petitioner shall properly complete, as required by that statement. Such amended disclosure statement shall be received by the Court on or before October 17, 2017. A copy of an Amended Ownership Disclosure Statement is attached to this Order.

For any party who does not make filings electronically, please note that the Court is experiencing brief delays in the delivery of U.S. Postal Service mail. However, timely deliveries by private carriers have not been interrupted.

Docket No. 14651-11, 14652-1111087-12

These cases were on the Court’s October 19, 2015 trial calendar for San Francisco, California. They had been continued numerous times, and the Court and parties have tried various ways to move things ahead. The highest numbered case features a request for innocent-spouse relief. Ms. Briguglio has now served petitioner Murray with requests for admission that he has not responded to. This may enable the filing of a summary-judgment motion on this issue. The other cases are straight deficiency cases, and respondent reports assembling thousands of pages of documents that are likely headed to a proposed stipulation under Rule 91(f). This is good progress under the circumstances. The parties reasonably suggest checking in again at the end of the year, and it is

ORDERED that on or before December 15, 2017 (a) respondent move for an order to show cause under Rule 91(f) or file a status report to describe his progress in resolving the cases; and (b) petitioner Briguglio file a motion for summary judgment or file a status report to describe her progress in resolving her case.

Docket No. 16057-14

On October 3, 2017, respondent filed a Motion To Calendar, in which respondent indicates that petitioners have no objection to the granting thereof. Upon due consideration, it is

ORDERED that jurisdiction of this case is no longer retained by Judge Ronald L. Buch. It is further

ORDERED that the motion to calendar is granted in that this case is calendared for trial at the Trial Session of the Court scheduled to commence at 10:00 a.m., on December 11, 2017, in Room 1167, Edward R. Roybal Center & Federal Building, 255 E. Temple Street, Los Angeles, California 90012.

[NOTE: A docket inquiry shows that this is the seventh trial date set for this 2014 case.  Previous trials were set and then continued for May 5, 2015; October 5, 2015; February 1, 2016; June 13, 2016; November 14, 2016; and April 17, 2017.]