Opinion
6983-19W
03-26-2024
ARTHUR M. BIALER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
Our order (Doc. 147) directed the parties to file status reports "recommending a schedule for further proceedings in this case, whether that be a motion for summary judgment or a remand to the IRS WBO for further consideration of Claim T." The parties complied:
The Commissioner filed a report (Doc. 154) that recommends a schedule for making de-redactions from the administrative record already filed with the Court and that states, "By June 7, 2024, respondent intends to file a motion for summary judgment." Petitioner filed a report (Doc. 155) that states, "[P]etitioner will file on or before March 29, 2024, a motion to supplement the record with a small number of documents produced by respondent", and that otherwise makes no objection to the Commissioner's proposed schedule. Where the parties agree on a schedule, the Court is usually inclined to follow their consensus and order what they have suggested. However, it will be useful to have one more piece of information before deciding whether to do so.
Petitioner's status report states (in para. 20), "Kasper v. Commissioner[, 150 T.C. 8 (2018),] was in gross error, and ... the D.C. Circuit should overrule it in Shands v. Commissioner", 160 T.C. (Mar. 8, 2023), appeal pending, No. 23-1160 (D.C. Cir.). We note that the Shands appeal is fully briefed, and that oral argument is scheduled for April 2, 2024. We assume that an opinion cannot be expected for several months.
It is
ORDERED that, no later than April 5, 2024, petitioner shall file a very brief status report that states (1) whether petitioner's position on the merits of this case depends on the overruling of Kasper in Shands and, if so, (2) whether he believes it would be expedient to defer briefing and decision in this case until the appeal in Shands is decided. We do not now ask for petitioner to argue nor even to explain his answer, but simply to tell us, again, whether his position depends on action by the D.C. Circuit in Shands and whether that should affect our schedule in this case. If further elaboration of petitioner's position would be helpful, we will ask for it in a subsequent order. It is further
ORDERED that, no later than April 12, 2024, the Commissioner shall file a very brief status report responding to petitioner's status report.