In Uncategorized on 03/24/2016 at 15:13

No, not my fellow Phi Beta Kappa member Nathaniel Hawthorne’s 1837 short story collection, rather this is the story of Jason M. Scheurer, Docket No. 25308-14, filed 3/24/16.

Judge Lauber tells the story. J is trying to prove some partnership deductions passed through to him on the ordinary-and-necessary track, but IRS claims these were contributions to capital or loans. And there’s also the question whether J, Louis and Manny were partners carrying on a trade or business.

J claims he needs the testimony of Kevin Zinn, who ran an outfit with which J and partners did business. J also asks a wee bit late, although he did try on the trial to get Kev’s testimony in. It was ruled cumulative at the time; it would only prove (or not prove) what had already been proven (or not proven) by other testimony and documents.

J tries again. But there’s a hitch. Kev was in the slammer in MS when the trial took place last November. Kev has since moved to the Federal Correction Facility at Ft Dix, NJ.

As one who has visited Ft Dix (but not, definitely not, the Federal Correction Facility there, or anywhere else), I cannot recommend it to the tourist.

So J wants to get Kev’s testimony, and claims the Ft Dix guardians would let Kev talk. But four (count ‘em, four) months have gone by since the record was closed on the trial.

No, says Judge Lauber, Kev’s testimony does nothing.

“Reopening the record for the submission of additional evidence lies within the sound discretion of the Court. A court will not grant a motion to reopen the record unless, among other requirements, the evidence in question is not merely cumulative; the evidence is material to the issues involved; and the evidence probably would change the outcome of the case.” Order, at p. 2. (Citations omitted).

J had to keep records, and he claims he put in whatever he had. He had three witnesses testify about his business dealings. What Kev knows about how J’s alleged partnership worked doesn’t add to what has already been testified.

Besides, IRS already has done their post-trial brief. Taking Kev’s deposition would impose additional work on IRS, and nothing J has suggested Kev might say could justify doing that.

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