Attorney-at-Law

“ASK, AND YE SHALL RECEIVE”

In Uncategorized on 09/03/2013 at 00:12

Or maybe not, but you have to ask.

I thought I’d make it through a three-day weekend without my Tax Court fix, and I almost did, as I’m writing this just as my ship’s clock has struck five bells. But the urge is strong, so I had to hunt up the most likely order among Friday’s dross. And even though it’s a thrice-told tale, here’s the story of Harold W. Kuisel, Jr., Docket No. 19849-12, filed 8/30/13, as told by Judge Buch, the latest luminary on the Tax Court bench.

Hal starts off with what he calls “Petitioner’s Motion to Compel Respondent’s Compliance with Rules Governing Interrogatories and Requests for Production. Mr.Kuisel attached to his motion a copy of his request for production and interrogatories dated November 20, 2012, a copy of a Branerton letter from respondent dated December 20, 2012, and a letter from Mr. Kuisel to respondent dated February 6, 2013.”  Order, at p. 1.

You’ll remember the oft-quoted Branerton case, 61 T.C. 691 (1974), which states the well-worn “play nice and discover informally” rule. See my blogpost “Can Tax Court Be Habit-Forming?”, 12/20/11; I’ve cited Branerton at least eight (count ‘em, eight) times since then.

Well, Hal has bypassed Branerton, and that, as we know well, is a no-no. Judge Buch puts Hal right: “The documents petitioner attached to his motion reflect that Mr. Kuisel has made no attempts at informal discovery, such as simply requesting from respondent the documents that were used to create the substitute for return under section 6020(b) (to which he is entitled). However, the requirement of informal discovery continues and the document petitioner sent to respondent with interrogatories and requests for production of documents is formal, despite the title given to it by petitioner of ‘Informal Discovery Request’. An insistence on ‘compliance with his formal discovery requests in advance of any conference between the parties does not effectively present an opportunity for the “discussion, deliberation, and an interchange of ideas, thoughts, and opinions between the parties” that our Rules contemplate.’ Petitioner may continue to proceed in writing if he prefers, but that writing should not be in the form of making demands.” Order, at pp. 1-2. (Citations omitted).

Now Judge Buch set up a conference call with IRS and Hal, and it appears they’re playing nice and having a show-and-tell. They may even get around to the “discussion, deliberation, and an interchange of ideas, thoughts, and opinions between the parties that our Rules contemplate.”

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