To any who object that I put out too many discovery blogposts, that’s what takes up the greatest number of Tax Court Order pages beyond routine pay-and-amend or tossed-for-lateness. The CLE merchants who peddled “win your case at discovery” the last thirty (count ’em, thirty) or so years have swept the board. Pretrial faceoffs are the game; if the game itself takes place at all, it’s an afterthought.

By way of illustration of the foregoing (as my expensive former colleagues say), here’s Judge Rose E. (“Cracklin'”) Jenkins unloading eight (count ’em, eight) pages anent document production in GO Management Inc., et al., Docket No. 14012-21, filed 3/17/26, another microcaptivity dodge. 

Most of the Order deals with case-specifics, but there is one general interest point. I’ll let Judge Jenkins judge–‘splain.

“…despite respondent’s request for documents to be produced in their native format, each document produced was produced as a PDF file. Although referenced, respondent’s electronically stored information provided previously in connection with informal discovery requests, and respondent provided them with a follow-up request to provide the documents in accordance with such specifications…. Respondent also states that petitioners at no point raised concerns about the omission of the specifications. The Motion Response states that petitioners provided documents in the format in which they were maintained and, in any event, that respondent’s failure to include the ESI specifications with the Request originally was determinative.

“Respondent did make an ESI specifications request in the Request, and petitioners did not, in the Request Response, raise any specific objections to that request, as instructed in Rule 72(b)(2). Even in the Motion Response, petitioners do not raise substantive objections to the ESI specifications but simply argue that they did produce them in the format in which they were stored, which, as noted in the Reply, is the requirement under Rule 72(b)(3)(B) only if a specific form has not been requested. Furthermore, as respondent also points out in the Reply, it is dubious that all of the items produced, e.g., emails and Microsoft Excel files, were stored in PDF format. Accordingly, the Court will order petitioners to produce ESI according to the ESI specifications referenced in the Request.” Order, at. p. 2.

Scrub the metadata is an obvious desideratum. PDF does that. Taishoff says Judge Jenkins is right to call it “dubious” that documents subject, or potentially subject, to a litigation hold would be stored in PDF only. Once preserved in PDF, an essential element of the original is gone. Spoliation of evidence, maybe so? I do hope none of the aforementioned merchants are making this suggestion.

Gets No Help from Boechler

That’s the bad news from Judge Adam B. (“Sport”) Landy to Arbor Vita Corporation d.b.a. Hemediagnostics, 166 T. C. 5, filed 3/16/26. Heme, a CA Corp, was decorpitated by the CA Franchise Tax Board for failure to pay State taxes. While thus powerless, Heme got a NFTL for failure to pay FUTA and file W-2s sustained by Appeals, so Heme timely petitioned. Heme doesn’t get restored to CA good standing until five (count ’em, five) months after the 30-day claim processing limitation has run. 

IRS claims want of corporate capacity and moves to toss. If this sounds familiar to my longtime readers, you’re right; see my blogpost “Being and Nothingness,” 5/7/13.

Except.

Judge Sport Landy checks CA law and finds while revival gives back corporate powers and allows continuation of litigation, it doesn’t deprive opponent in ongoing litigation of claims or defenses. IOW, revival doesn’t defeat SOL Judge Sport Landy is more elegant in his phraseology. “…if relation back of revival would prejudice or invalidate an opposing party’s defense that accrued because of the suspension of corporate status, regardless of the nature of that defense, then revivor cannot retroactively validate an otherwise procedural act.” 166 T. C. 5, at p. 5.

What about Boechler?

Cases like Hom, referred to in my above-cited blogpost, were deficiency cases, not CDPs. So there is some wiggle room for defunct corporations in CDPs. 

Except.

“…31 days after issuing the Notice of Determination, the Commissioner accrued a statute of limitations defense against any petition filed by Arbor Vita. To retroactively validate Arbor Vita’s Petition at this juncture would prejudice the Commissioner’s defense by effectively nullifying it because Arbor Vita’s Petition would be considered valid and timely filed. Therefore, under California law, we cannot relate Arbor Vita’s corporate revival back to the time it filed its Petition.” 166 T. C. 5, at p. 7. (Citations omitted).

Except.

Doesn’t Boechler take away jurisdictional SOL?

Yes, but here the petition was timely filed. While CA law allows revival to validate a notice of appeal filed while a corporation was defunct, the Supremes have said pore l’il ol’ Tax Court isn’t an appellate court. 

Equitable tolling works to extend the 30-day cutoff for petitions from a CDP NOD. But since the petition was timely filed here, there’s nothing to extend.

Heme’s trusty attorney gets a Taishoff “Good Try, Third Class.”

The evidentiary dust-up in Amgen Inc. & Subsidiaries, Docket No. 16017-21, filed 3/16/26, has produced documents and disputes that come near to overshadowing the infamous Epstein files. The record is still open, while Judge Travis A. (“Tag”) Greaves contemplates the approaching tsunami. “During trial, we admitted into evidence thousands of exhibits, and the parties represented that they were working together to stipulate to the admission of thousands more.” Order, at p. 1.

The joust goes on. Judge Tag Greaves, however, gives us a vest-pocket précis of the FRE worth keeping in your memo of law file.

“This Court applies the FRE when deciding evidentiary issues. See § 7453; Rule 143(a). The Court has broad discretion over the admission of evidence. Relevant evidence is generally admissible. FRE 402. Evidence is relevant if ‘it has any tendency to make a fact more or less probable than it would be without the evidence’ and ‘the fact is of consequence in determining the action.’ FRE 401. One exception to the general admissibility of relevant evidence is the rule against hearsay; hearsay may not be offered for the truth of the matter asserted unless an exception applies. FRE 801, 802. The Court may also ‘judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” FRE 201(b).” Order, at pp. 2-3. (Citation omitted).

Judicial notice is routinely taken of SEC filings, for example.

But IRS wants stricter rules here, for evidence submitted to reopen the record. No, says Judge Tag Greaves, the record is still open. “Neither party has sought to close the record, nor has either party sought limitations on the admission of additional evidence while the record remains open. Since the conclusion of trial, we have admitted additional exhibits into evidence pursuant to the FRE, and we see no reason to depart from that practice here.” Order, at p. 3. If IRS claims ambush, they’ll get supplemental briefing to deal with it.

Judge Tag Greaves applies a minor brake-tap to Greenberg’s Express. IRS objects to some petitioner’s exhibits (hi, Judge Holmes). “These exhibits are Notices of Proposed Adjustments and the IRS’s rebuttal to a protest filed by Amgen, in which the IRS discusses whether the expense reimbursements were at arm’s length. These exhibits satisfy the low threshold of relevance due to respondent’s argument on brief that in order to qualify for set-off treatment, respondent must have disallowed the item at issue due to the arm’s length standard. Even if their significance is tempered by the general principle that the actions or views of revenue agents do not bind the Commissioner, the exhibits nonetheless have some tendency to make a material fact ‘more or less probable.’ As such, we will admit these four exhibits. Order, at pp. 3-4). (Footnote omitted, but it says IRS didn’t argue Greenberg’s Express. Taishoff wonders why not).

So go brief whatever you have and answer a few conundra Judge Tag Greaves has for y’all at Order, at p. 5. No need for more oral argument.