In Uncategorized on 04/29/2016 at 16:13

Is informal. No strict rules, just play nice. Nobody will stand over you. Just tell your story and play show-and-tell. That’s the Tax Court discovery way.

But if you are callous and obdurate, you will be struck with orders to show cause why you should not answer interrogatories and produce documents, and even appear for depositions. That’s also the Tax Court way.

But informal comes first.

Now here’s a designated hitter that puzzled me, but it will take another blogpost for me to tell you why, so stay tuned.

Mescalero Apache Tribe, Docket No. 28120-14, filed 4/29/16, requires “…some greater-than-average amount of pretrial work. That became clearer when petitioner moved to compel discovery of respondent’s records of third-party information. The Court spoke with them and decided that it was the unusual discovery motion that would benefit from some more research.” Order, at p. 1.

So the Court obliges. And no, this is not that Obliging Jurist Judge David Gustafson, but rather The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Illustrious, Indefatigable, Irrefrangible, Ineluctable, Incontrovertible, and Ineffable (but never Imperious or Impossible) Foe of the Partitive Genitive, and Old China Hand, Judge Mark V. Holmes.

Judge Holmes’ ordered research turns up an interesting point.

The Tribe is moving “to compel informal discovery requests.” Order, at p. 1. (Emphasis by the Court).

I think you meant “to compel replies to informal discovery requests, Judge. (Emphasis by me). I think the Mescaleros wanted to get answers, not be asked questions.

But the Mescaleros want to put on the saddle before they put on the blanket. That’s not the way to do it, says Judge Holmes.

“That’s not how the Court’s procedure works. We insist on informal discovery, but if that doesn’t work the next step is formal discovery, not a motion to compel. The one case that petitioner cites in support of its position, Schneider Interests L.P. v. Commissioner, 119 T.C. 151 (2002), holds only that formal discovery may not precede informal discovery. Only if informal discovery fails, we held, may parties ‘resort to the formal discovery provisions of the Tax Court Rules.’ Id. at 156. Our Rule 104 which governs motions to compel discovery presupposes formal discovery.” Order, at p. 1.

So the Mescaleros’ motion to compel is denied without prejudice to renewal if IRS turns callous and obdurate.

Now fast forward to my next blogpost.

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