Attorney-at-Law

RELATED VS. RESPONSIVE

In Uncategorized on 06/26/2014 at 18:07

I have to give IRS’ counsel a Taishoff “good try”, first, because I am evenhanded, and second, because it’s a nice move, given petitioners’ gameplaying with document production. Counsel must have been awake at some of those “win your case at discovery” CLE’s.

But Judge Gale will have none of it, in William P. Terhune & Jennifer S. Terhune, Docket No. 11768-13, filed 6/26/14.

Will and Jenn ducked IRS’ interrogatories and the document production requests, so IRS made a Rule 104 motion with sanctions attached. This awakened Will and Jenn, and they did reply to the interrogatories, at least enough to mollify the Constitution Avenue crowd. But the documents produced fell short, and IRS wanted to preclude any documents, or testimony, related to any of the documents IRS had requested, saving only documents related to Jenn’s Section 6015 innocent spousery claim.

Judge Gale won’t go that far. Yes, sanctions are appropriate, as Will and Jenn are less than cleanhanded. However:

“We believe that respondent’s modified request sweeps too broadly, given that it would likely exclude documents or materials that were not sought in the Request for Production of Documents, as well as any relevant testimony. This would potentially put respondent in a better position in this litigation than if petitioners had promptly and fully complied with the document production request. Instead, we conclude that a narrower sanction is appropriate: petitioners should be precluded from introducing into evidence any documents or materials that would have been responsive to respondent’s Request for Production of Documents, except in the case of items related to petitioner Jennifer S. Terhune’s request for spousal relief.” Order, at p. 4. (Footnote omitted, but read it; there’s the Standard PreTrial Order, which gives everyone either a chance to come clean or get whacked).

So I’m giving IRS a Taishoff “good try”, even though they canceled the IRS Tax Forum webcast on Retirement Plans after Windsor v. United States today at the last minute, without notice and with a footling scheduling excuse.

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