Attorney-at-Law

PAPER IS NOT ENOUGH

In Uncategorized on 04/28/2016 at 17:17

I’ve told this story before, but it’s always good to have a refresher. When you want Summary J (and I love Summary J), it’s not enough to have good documents. You have to tie them together with an affidavit (declaration) from someone with personal knowledge.

Now STJ Daniel A (“Yuda”) Guy isn’t above teaching IRS’ counsel that lesson in a designated hitter, no less, Peter Alexander Goodwin, Docket No. 23146-15W, filed 4/28/16.

Sounds like Pete’s about to get the “we got no cash so you get no cash” brushoff from the Ogden Sunseteers. But first IRS’ counsel needs to get with the program. She throws in the documents with no affidavit or declaration, just refers to them in her motion.

“As a general rule, documents that are not part of the record must be introduced to the Court, in support of a motion for summary judgment, by way of an authenticating affidavit or declaration made on personal knowledge.” Order, at pp. 1-2. (Citations omitted).

It’s like a cover letter. You list what you’re attaching, whence it came and why it’s reliable (public record, business record, supported by another affidavit that follows). That shows the Judge why s/he can rely on the paper.

“Without a proper affidavit or declaration, neither the factual assertions in the numbered paragraphs nor the attached exhibits are admissible evidence, and they cannot be properly relied on by this Court in considering respondent’s motion.” Order, at p. 2. (Citation omitted).

So even though IRS’ counsel has a memo from a Senior Tax Analyst to Stephen Whitlock, a/k/a The Chief Whistler, among the rest of the stuff she handed STJ Yuda, that doesn’t get it.

STJ Yuda even gives IRS’ counsel a second chance to refurbish her papers.

“… respondent [IRS’ counsel] shall file a Supplement to his motion for summary judgment and attach thereto an affidavit or declaration in support of respondent’s motion as more fully described in this Order.” Order, at p. 3.

Quite a sea change from the way he unloaded on poor ol’ TK in my blogpost “The Slam,” 4/15/16.

 

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