In Uncategorized on 12/24/2013 at 16:44

Many a time and oft have I heard (or used) this phrase in a deposition. A deponent’s answer, if not downright non-responsive, is the deponent’s answer, and the party taking the deposition is stuck with it, absent proof of perjury.

The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being (despite his unprovoked war on the partitive genitive), His Honor Mark V. Holmes, gives the IRS an early Christmas present with his illustration of this principle in Rolv Heggenhougen & Linn H. Heggenhougen, Docket No. 7441-12, filed 12/23/13.

Because Tax Court is closed today, 12/24/13, I had to go back a day to find a subject worthy of a Taishoff blogpost. This is pretty good.

Background: “…respondent [IRS] moved to compel responses to his first request for production of documents and his interrogatories. Very similar motions had already been denied the last time this case was on a calendar, but without explanation. This suggests that those denials were less on the merits and more as an accompaniment to the granting of a continuance.” Order, at p. 1.

Remember the Tax Court show-and-tell and “play nice” rules for discovery.

But now IRS stops playing nice. And Judge Holmes gives them a time-out.

“The Court will deny the motion to compel answers to interrogatories because the Heggenhougens did answer the questions. The Court understands that respondent may disagree with those responses, and if they turn out to be perjurious, the Court can sanction the Heggenhougens and consider that fact in deciding any fraud questions still at issue. But the Court can’t presume that on the face of these responses.” Order, at p. 1.

Asked and answered, IRS. Move on.

But Judge Holmes isn’t through. “The Court will likewise deny the motion to compel responses to respondent’s first request for the production of documents. The Heggenhougens responded to these requests with a response in which they stated that they had supplied all documents that they had been able to obtain. Nothing in this response is contradicted by their responses to the requests themselves. If, however, the Heggenhougens attempt to introduce documents not already produced to respondent at trial, it is very likely that the Court will sustain an objection to their admission.” Order, at pp. 1-2.

While it’s fine to pursue discovery diligently, enough is enough.

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