Tax Court (Judge Lauber) rejects Coca-Cola’s Untimely Motion for Reconsideration (12/3/21; 11/9/23)

There is a subsequent development in this case. On 11/8/23, the Court entered decision in Coca Cola Co. v. Commissioner, T.C. Memo. 2023-135. This opinion decides the remaining key issue but calculation issues will be resolved, if necessary, in order to enter the final Decision.  I discuss this Memo Opinion, here.

I wrote earlier on the Coca-Cola case, Coca-Cola Co. & Subs, v. Commissioner, 155 T.C. 145 (2020), TC Dkt # 750 here. See Tax Court (Judge Lauber) Issues Significant Transfer Pricing Decision in Coca-Cola; Burden of Proof Issues (11/19/20; 11/25/20), here; and More Coca-Cola - On Transfer Pricing and Blocked Income Regulation (11/23/20), here.  

The Tax Court (Judge Lauber) recently denied two related Coca-Cola motions:  “at docket entry #747, a Motion for Leave to File Out of Time a Motion for Reconsideration of Findings or Opinion Pursuant to Tax Court Rule 161 (Motion for Leave) and concurrently lodged, at docket entry #748, a Motion for Reconsideration.” The complete docket entries are here.

The problem is that the motions were filed untimely.  Judge Lauber notes (p. 1):

            Under Rule 161,1 a party shall file a motion for reconsideration of an opinion or findings of fact within 30 days after the opinion is served “unless the Court shall otherwise permit.” Petitioner filed its Motion for Leave 196 days after our Opinion was served. Whether to grant a party’s motion for leave to file a motion for reconsideration in such circumstances is within the Court’s discretion. Louisville & Nashville R.R. Co. v. Commissioner, 641 F.2d 435, 443-444 (6th Cir. 1981), aff’g on this issue 66 T.C. 962 (1976); Thompson v. Commissioner, T.C. Memo. 1989-303, 57 T.C.M. (CCH) 783, 784.

The Order is a short 8 pages.  Suffice it to say that Judge Lauber was not impressed with Coca-Cola's arguments (including bringing in the undoubtedly very expensive big gun (real or imagined), Michael Luttig (Wikipedia here), to belatedly enter the fray after the battle had been lost in the Tax Court).

I am now trying to get the motions, responses and replies. The problem is that filed pleadings are not available generally from the Tax Court DAWSON (like PACER, but not as good as PACER for a host of reasons I won’t get into now).  Even worse, under the current implementation of DAWSON, so long as the docket for the case has any document filed under seal, the entire docket list is unavailable.  Here is what DAWSON returns when you request the docket:

 

In this case with 750 docket entries, simply because some small subset of the documents listed on the docket entries is under seal, then the entire list of docket entries is unavailable.  That makes no sense to me.  PACER has long since been able to provide a complete list of  docket entries even when some particular entries cannot be accessed because under seal, so that documents  not under seal can be identified and obtained online simply by paying the PACER fee.

I won’t go further into the Tax Court’s disservice to the public in its current implementation of DAWSON.  I do say that, in a number of respects, the Tax Court version prior to DAWSON was not as good as PACER, but it was far better than the DAWSON “upgrade.” Enough on that rant for now.  

When I and if I get the pleadings behind this Order I will likely have more to say.