Attorney-at-Law

UNFAIR SURPRISE

In Uncategorized on 11/21/2015 at 00:07

Here’s a designated hitter from The Judge Who Writes Like a Human Being, a/k/a The Great Dissenter, s/a/k/a The Implacable, Illustrious, Indefatigable, Irrepressible and Irreconcilable Foe of the Partitive Genitive, and Old China Hand, Judge Mark V. Holmes.

And there are no surprises, fair or unfair, here, but a good lesson on when Tax Court pleadings can be amended.

This is apparently a big-ticket case, Estate of Marion Levine, Deceased, Robert L. Larson, Personal Representative and Trustee, Robert H. Levine, Trustee and Nancy S. Saliterman, Trustee, Docket 9345-15, filed 11/20/15.

And it’s consolidated with another case so captioned at Docket No. 13370-13, which Judge Holmes says was on the 6/15/15 trial calendar in Minneapolis, MN, except the Tax Court docket search only shows the consolidation order on that date, and Judge Holmes’ order says there’s no trial date.

Be the procedural issue what it may, IRS wants to amend its answer to add Section 6501(c)(9) inadequate disclosure as a ground for blowing off the SOL altogether, in addition to the Section 6501(e) substantial omission IRS is using to try for 6SOL.

The Pers Rep and Trustees yell that they already moved for summary J so IRS is too late, IRS’ latest position contradicts their earlier position on SOL, and they’ve been ambushed (unfairly surprised).

First, the basics. “Whether a party may amend its answer lies within the sound discretion of the Court. In determining the justice of allowing a proposed amendment, the Court must examine the particular circumstances of the case, and consider, among other factors, (a) whether an excuse for the delay exists; and (b) whether the opposing party would suffer unfair surprise, disadvantage, or prejudice.” Order, at p. 2 (Citations omitted).

Next, delay. True, the answer was filed in June, but then there was informal discovery, followed by some stipulations. In a big-ticket, complex case, this isn’t unusual delay.

Now for contradictory pleading. “Petitioners objected, and argue that respondent wasn’t diligent in asserting this ground and that it’s inconsistent with the ground he’s already asserted in his answer. But, Tax Court Rule 31(c) allows for alternative arguments.” Order, at p. 1.

Or as the late great Gilda Radner was wont to remark: “If it’s not one thing, it’s another.”

Finally, unfair surprise. And I stress “unfair” because Judge Holmes does. “Unfair” doesn’t mean your adversary stumbles upon the theory that sinks your case without trace.

“The Court can see no unfair surprise, disadvantage, or prejudice to petitioners. There may well be prejudice or disadvantage in the sense of having to counter a new argument that might be difficult to argue against. But to justify not allowing an amendment, prejudice must be unfair, which in this context doesn’t mean lowering petitioners’ probability of success but rather means lowering the probability of reaching a just result in the case. This usually means an amendment filed so late that trial would be delayed… or the addition of a new theory of recovery. It doesn’t include circumstances where a summary-judgment motion prompts the Commissioner to come up with a new argument.” Order, at p. 2. (Citations omitted). (Emphasis by the Court).

And we’re not on the eve of trial, with discovery concluded, witnesses lined up and their stories tied down, exhibits at the ready and lawyers at the point of nervous collapse.

“There is no trial date, and the proposed amendment — if not quite purely legal (there must be proof of the return petitioners filed) isn’t a gateway to a vast new program of discovery.” Order, at pp. 2-3.

Go amend, IRS.

 

 

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