Attorney-at-Law

DON’T ASK

In Uncategorized on 11/29/2013 at 22:30

I’m a fan of notices to admit; they can narrow issues, save trial time, and make one’s adversary think twice before advancing a doubtful claim.

But the very liberality which Tax Court accords to Rule 90 Requests for Admission (the Tax Court equivalent of our State Court notices) can create a trap for the requester. It’s too easy to try to prove your case that way, and in doing so, go a bridge too far and get a judicial slap.

An IRS attorney is the recipient of such a slap in Jody J. Cavis, Docket No. 1111-13S, filed 11/29/13.

Now both FRCP 36 and Rule 90 provide that merely because a requested admission presents a genuine issue for trial, the recipient of the request cannot object and refuse to respond. Maybe the response can obviate the need for a trial, or at least narrow what has to be tried.

But there are limits, and here The Judge With a Heart, STJ Armen, sets them down:

“Upon review, the Court regards the Request For Admissions as inappropriate, if not abusive, and shall therefore relieve petitioner of the obligation to respond to it.

“Respondent’s [IRS’] aforementioned Request For Admissions consists of 3 numbered paragraphs. The first numbered paragraph is a venue statement, but venue is already established by the Petition filed January 14, 2013. The second numbered paragraph incorporates a copy of the December 12, 2012 notice of deficiency from which petitioner appealed to this Court, but a copy of such notice is already in the record by virtue of the parties’ pleadings. The third numbered paragraph represents a conclusory statement that seeks petitioner’s concession of the sole substantive issue in this case, an issue that petitioner clearly raises in paragraphs 5 and 6 of the Petition filed January 14, 2013.” Order, at p. 1.

So, on his own motion, Judge Armen tosses IRS’ request and tells Jody to forget about it.

Takeaway- You can try to get your adversary to admit ultimate facts, if you use a certain amount of subtlety; but a frontal assault will only get you STJ Armen’s response: “Don’t ask.”

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