In Uncategorized on 05/02/2014 at 18:22

Al Dubin’s and Harry Warren’s 1933 classic, as sung on the silver screen by Ruby Keeler and Clarence Nordstrom, is the advice The Great Dissenter, a/k/a The Judge Who Writes Like A Human Being, Judge Mark V. Holmes, has for the IRS in three (count ‘em, three) designated hitters, but I’ll only link to one of them, US Oil & Gas Ventures JV 2007, Energy Resource Management, LLC, Tax Matters Partner, et al., 000260-12, filed 5/2/14.

Case is on for trial next month in Buffalo, New York, but that isn’t going to happen.

After figuring out who is the tax matters partner and what his address might be, Judge Holmes confronts the bane of modern litigation: discovery. IRS files the usual show-and-tell motions (produce documents and answer interrogatories).

Well, we all know about Branerton: the rules are play nice and talk among yourselves.

But there’s a catch: “As petitioners’ representative managed to point out in the conference call, respondent here did ask for an informal discovery meeting (a Branerton conference, to use Tax Court jargon) but set it for Dallas. Since these cases are to be tried in Buffalo, the Court can’t really say this was reasonable. (But the Court will also not say it was at all in bad faith — the original place of trial was Dallas, and that’s where respondent’s counsel works. Still, we can’t say that our commitment to informal discovery can be met with a demand for a meeting nearly 1400 miles from the place of trial if petitioner objects.) That means that we must deny —for now –respondent’s various motions to compel in these cases.” Order, at pp. 1-2 (Emphasis by the Court).

But Judge Holmes is not a happy camper. “And all of that means that in these cases filed more than two years ago, not even informal discovery has been completed. This is entirely unsatisfactory, and the Court expects that these cases will be heading to a pretrial-order track very shortly.” Order, at p. 2.

So, as a former law partner was wont to say “Kick it into gear!”


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