Attorney-at-Law

STIPULATE, DON’T CAPITULATE – PART DEUX

In Uncategorized on 05/24/2013 at 22:28

See my blogpost “Stipulate, Don’t Capitulate”, 9/23/11, for the story of Bernie and Martha Williams. There, Bernie stipulated.

But today, 5/24/13, in a designated hitter from Judge Gale, David Franklin & Ronda Ching Day, Docket No. 1770-12L, filed 5/24/13, don’t even do that. They don’t answer IRS’ Rule 91 motion that proposed facts should be deemed established.

Now the classic rule is that ultimate facts, those which give the other side (in this case IRS) the victory, should only be deemed established if there’s no effective defense to proving such facts if there were to be a trial, and then on a motion for summary judgment (Rule 121). Ordinarily, if there’s a defense to introducing proofs of such facts on a trial, or if one side is jumping the gun and short-circuiting Rule 121, they should not be deemed admitted.

And that’s what Judge Gale does, using Rule 91(f)(4). “Under Rule 91(f)(4), the Court must determine ‘whether in the interests of justice a matter ought not be deemed stipulated.’” Order, p. 1.

Well, IRS wants Dave and Ronda to be deemed to have stipulated to the contents of “Forms 4340, Certificates of Assessments and Payments; to the facts establishing whether respondent effected assessments of their income tax liabilities; or to the Case Activity Record Print purportedly maintained by respondent’s Appeals Office concerning the consideration of petitioners’ request for a hearing with respect to the collection action at issue in this case.” Order, p. 1.

In other words, unconditional surrender.

Nice try, IRS; but that’s a motion for summary judgment, and you’re not there yet.

So in the interests of justice, Judge Gale lets in everything else, but the aforementioned ultimate facts must await further proceedings.

Hint to Dave and Ronda: get a lawyer.

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