In Uncategorized on 01/15/2016 at 15:48

Remember Rule 91(f)? If you’re a regular follower of this my blog (a poor thing but mine own), sure you do.

It’s Tax Court’s equivalent of what we here in The Empire State call a Rule 3120, referring to our Civil Practice Law and Rules, a Notice to Admit.

I’m a great fan thereof, as I’ve noted elsewhere. Cf, e.g., my blogpost “Got Gas?”, 10/21/15.

But, as I criticized Judge Laro and the IRS in that case for pulling a fast one by way of a Rule 91(f) OSC, today I criticize Big Julie, more formally known as His Honor Big Julie Judge Julian I Jacobs, hereinafter referred to as HHBJJJIJ, for adding a word to the Rule in accepting IRS’s story in toto, in a designated hitter Kevin D. Tebedo, Docket No. 3694-15, filed 1/15/16.

First, the text of the Rule, in relevant part, from Tax Court’s own website. “If no response is filed within the period specified with respect to any matter or portion thereof, or if the response is evasive or not fairly directed to the proposed stipulation or portion thereof, that matter or portion thereof will be deemed stipulated for purposes of the pending case, and an order will be issued accordingly.” Rule 91(f)(3).

HHBJJJIJ deems the entire IRS proposal admitted under Rule 91(f)(3). OK, was Kevin frivolous, or cute?

Not according to the order. “Petitioner’s response was not fairly directed to all matters in the proposed Stipulation of Facts.” Order, at p. 1.

So was Kev’s response fairly directed to some matters? Must a response be directed to all matters? What if a party responds to some matters directly, but not to some others? Is there no partially deemed admitted matter? Or did HHBJJJIJ mean that Kev’s response wasn’t fairly directed to any matters, rather than not directed to all matters? The Rule says “the proposed stipulation or portion thereof will be deemed admitted….”, not all matters.

It does matter.


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