Attorney-at-Law

JUDGE HOLMES’ VENDETTA

In Uncategorized on 07/08/2016 at 16:23

A Friday afternoon in July, and I’m thinking about my favorite hot weather cordial, known as an Ourobouro. No, not the one with the worm; mine is a piña colada made with Ypaioca Ouro, cachaça aged two years in Balsamo barrels (whatever they are). It goes down singing Florencia en las Amazonas.

But Judge Holmes is unrelenting, with or without cognomens, so my drink must wait.

Here goes. It’s a bunch of designated hitters in the ongoing Ernest Ryder saga. We’ll extract Ernest S. Ryder & Associates, Inc., APLC, et al, Docket No. 14619-10, filed 7/8/16. There are fifteen (count ‘em, fifteen) cases of Ernie’s carryings-on, and Judge Holmes has designated all of them.

The mélange is supposedly set for trial July 25, but IRS is up to its old tricks.

“…petitioners had learned that respondent [IRS] has served 77 subpoenas on third parties, some of whom petitioners think may be represented. This might cause problems if the government is trying to communicate with represented persons without talking to their representative. But it became clear during the phone call that there’s an antecedent problem — petitioners have no idea who’s been subpoenaed.” Order, at p. 1.

Doesn’t that jog your memory about FRCP 45?

Well, it did mine, so see my blogpost “The Stealth Subpoena,” 7/16/15, when IRS played the same game they’re playing here, claiming they needn’t notify Ernie and the gang because Tax Court Rules say nothing about notice when a document isn’t filed with Tax Court…and subpoenas aren’t filed with Tax Court, so Rule 21(a) is auf’d.

Stealth subpoenas ride again.

Judge Holmes didn’t buy it then, and he ain’t buyin’ it now. Hey, maybe it’s time for a T. C. Memo., Judge, so that people don’t have to go scrolling through my old blogs to cop quotes for their memos of law. Or maybe change your Rules to conform to the FRCP.

“We do have to disagree with the Commissioner, however, that this absence of a rule creates an implication that secret subpoenas are favored. We promulgated our Court’s Rule 147, which governs subpoena practice, back in 1973. See Tax Court Rules of Practice and Procedure, 60 T.C. 1057, 1137 (1973). At that time, we said that our goal was a rule substantially similar to FRCP 45. Id. Back then, FRCP 45 didn’t require notice for subpoenas. Fed. R. Civ. Proc. 45 (1970). The notice requirement was added in 1991 to give parties the same opportunity to challenge nonparty subpoenas for documents that they had to challenge subpoenas for depositions (since FRCP 30 and 31 already provided notice protection in these circumstances). See Fed. R. Civ. Proc. 45 advisory committee’s note (1991). We have never publicly stated that we intended to deviate from Article III practice -it’s just an example of the two sets of rules drifting apart over time.

“We think that the current federal rule is a good one in litigation that is, as in these cases, especially hard-fought. The Court will therefore adopt the notification requirement of Federal Rule 45 as a modification to the pretrial order that governs this case.” Order, at p. 2.

Have a great weekend, guys.

 

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  1. […] Taishoff, JUDGE HOLMES’ VENDETTA. “The mélange is supposedly set for trial July 25, but IRS is up to its old […]

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  2. […] wrong. Attorney Taishoff has discussed this aspect of Tax Court practice in a prior post called Judge Holmes’ Vendetta, where he discussed an order earlier this year in Ryder v Commissioner, which also involved the […]

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