Attorney-at-Law

THE SHIP HAS SAILED

In Uncategorized on 03/11/2016 at 15:28

That’s CSTJ Panuthos’ word to IRS and Frank A. Martin II in First Ship, LLC, Francis A. Martin, III, Tax Matters Partner, Docket No, 20419-15, filed 3/11/16.

It’s really a time-wasting jumpball about Rule 37(c) undenied-deemed-admitted, when replies are on the menu.

Some of IRS’ allegations in their answer are legal reasoning and conclusions. Frank never bothered replying to those, so IRS moves to have them deemed admitted.

“Petitioner asserts that no reply is required under Rule 37 because: (1) respondent has not identified any issue on which respondent has the burden of proof (noting in particular respondent’s answer to petitioner’s affirmative defense of the statute of limitations); (2) respondent’s answer includes allegations and conclusions of law to which no response is required; and (3) respondent’s answer contains facts that were conclusively established in proceedings before the Northern District of California and can be readily stipulated to in this case.” Order, at p. 1.

Frank’s defense is SOL. IRS says that while Frank has burden-of-proof, IRS has burden of going forward, so needs admissions.

CSTJ Panuthos says, very politely, “So what?”

“However, the Court has held that the burden of proof does not shift from the party who pleads the bar of the statute of limitations. Given that the parties appear to agree that respondent does not have the burden of proof with respect to any allegations made in the answer it would appear to the Court that no reply is required pursuant to Rule 37.” Order, at p. 2 (Citation omitted).

Now that we’ve settled that point, guys, let’s get with the program.

“It is noted that the parties have spent some amount of time parsing words on matters that they may already agree upon. The Court expects the parties to move forward keeping in mind the provisions requiring the parties to informally consult and communicate (Rule 70(a)) and fully stipulate facts which fairly should not be in dispute (Rule 91).” Order, at p. 2.

Frank is represented by counsel, as of course is IRS. Anyone have the source of the following remark about lawyers? “What can one expect of men [sorry ladies, this was the bad old days, long ago] who agree about nothing, argue about everything, and are paid to talk by the hour?”

 

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