Attorney-at-Law

LET IT ALL HANG OUT

In Uncategorized on 09/17/2013 at 21:36

No, not the one-hit wonder The Hombres campaigned in 1967. It’s the general view manifested in Tax Court when taxpayers request protective order, or make motions in limine, or motions to strike pleadings.

The subject was raised by Mr. Patrick Temple-West, the enterprising reporter for Reuters, in an e-mail to me today, asking if I had statistics on won-lost, as these tend to show up in big-ticket cases. See, for example, my blogpost “Privilege Lost”, 5/29/13.

I told Mr. Temple-West I had no statistics, but it was my firm impression that taxpayers rarely get protective orders; see my blogpost “Guy On Board”, 9/13/12, the story of Diamond Packaging. But when the IRS wants a protective order, they generally (love that word!) get one; see my blogpost “Ask Me No Questions”, 6/7/12. However, bless his contrarian heart, the Judge Who Writes Like A Human Being, a/k/a The Great Dissenter, Judge Mark V. Holmes, splits the melon in my blogpost “Paraphrasing Mark Twain”, 12/12/12.

And now comes The Judge With A Heart, STJ Armen, with further proof of the foregoing, in Estate of John H. Kelleher, Deceased, Madeline Kelleher, Administrator, Docket No. 6863-13, a designated hitter filed 9/17/13.

Maddy wants IRS’ answer to her petition redacted by STJ Armen to remove “…the disputed paragraphs [which] refer to a criminal case against John H. Kelleher that was dismissed on account of his intervening death and therefore did not result in a final judgment of conviction.” Order, at p. 1.

However, IRS’ response to Maddy’s request “…is well founded and thorough, incorporating legal precedent in support of respondent’s approach….”, STJ Armen gives us one citation, Nan R. Williams, 1991 T. C. Memo, 521, filed 10/21/91.

Nan, unlike the late John H., pled guilty. John H. did not live to confront his accusers. That cuts no ice with STJ Armen. “Motions to strike are analyzed under Rule 52 of the Tax Court Rules of Practice and Procedure. Rule 52 provides that this Court, upon a timely motion of a party or on its own initiative, may strike from any pleading any insufficient claim or defense or any redundant, immaterial, impertinent, frivolous, or scandalous matter. Rule 52 was derived from Rule 12(f) of the Federal Rules of Civil Procedure.” Order, at pp. 1-2. (Citations omitted).

And Federal Judges don’t like to strike stuff in pleadings. “In general, motions to strike pleadings have not been favored by the Federal courts. A matter will not be stricken from a pleading unless it is clear that it can have no possible bearing upon the subject matter of the litigation.” Order, at p. 2 (Citations omitted).

So Maddy, answer the paragraphs you wanted stricken, because they won’t be.

Whether someone is living or dead, the rule in Tax Court is “Let It All Hang Out.”

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