Attorney-at-Law

NO CALLED STRIKE

In Uncategorized on 02/11/2016 at 14:47

Unlike our national pastime, in Tax Court there’s no called strike unless the ball is nowhere near the plate. That’s Judge Marvel’s call to Silicon Valleygirl Analog Devices, Inc. & Subsidiaries, Docket No. 17380-12, filed 2/11/16.

Judge Marvel is dealing with a closing agreement pursuant to Rev. Proc. 99-32, sec. 4, 1999-2 C.B. at 299. Exceptionally compulsive readers of this my blog (a poor thing, but mine own) will remember my blogpost “Stipulate, Don’t Capitulate – Redivivus,” 9/19/13 (q.v., as my expensive colleagues would say), wherein I canvassed the issue.

Howbeit, Analog wants to strike two statements from IRS’ supplemental brief, invoking Rule 52, claiming the two statements “exceed reasonable advocacy and should be stricken.” Order, at p. 2.

And Analog offers to show proof that, notwithstanding absence from the record, it did make noise about Section 965(b)(3) at a protest in 2008.

The judge can strike from a brief any “insufficient claim or defense or any redundant, immaterial, impertinent, frivolous, or scandalous matter.” Rule 52.

But that’s neither of the two statements at issue.

“The two statements at issue relate to the evidence in the record and respondent’s position with respect to the evidence. Petitioner has not established that the matters it seeks to strike can have no possible bearing on the issues in this case. Moreover, the parties submitted this case fully stipulated under Rule 122, a motion to strike is not an appropriate vehicle to reopen the record, and petitioner has not proven that it will be prejudiced if the statements are not stricken. Respondent’s statements are therefore best left for a determination on the merits.” Order, at p. 2.

Once again, stipulate, don’t capitulate. If you do stipulate, it’s too late for a strikeout.

 

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