Attorney-at-Law

STIPULATED BUT IRRELEVANT

In Uncategorized on 08/30/2016 at 15:32

I was going to title this blogpost with a pun from a much more exalted source than Tax Court, but “conscience doth make cowards of us all,” as a much better writer than I put it. So y’all will have to go without what Judge Posner of Seventh Circuit termed in another context “the loquacity of, and lame attempts of humor in,” this blogpost.

So, unembellished, here is Estate of Minnie Lynn Sower, Deceased, Frank W. Sower, Jr. and John R. Sower, Co-Executors, Docket No. 32361-15, filed 8/30/16, a designated hitter from Judge Buch.

Frankie and Johnny (you could write a song…enough already!) want a Rule 91(f) stip-in of a billet doux from an AO to their attorney.

IRS says it’s “’…merely the irrelevant legal opinions, conclusions, and analysis of the Appeals Officer’ and that ‘the content of such letter represents the items actually in dispute between the parties.’” Order, at p. 1.

Who cares what the AO thought or said?

Judge Buch agrees.  “Citing Greenberg’s Express v. Commissioner, 62 T.C. 324, 327 (1974), respondent correctly observes that ‘[t]he Court does not look behind the notice of deficiency’. ” Order, at p. 1.

The past ain’t even prologue. All that counts is the SNOD, the whole SNOD and nothing but the SNOD.

OK, but the time to toss the AO’s epistolary irrelevancies is not on a Rule 91(f).

Judge Buch: “All of this distills down to an argument about relevance.

“Relevance is not an appropriate objection to a stipulation. Rule 91 is explicit in this regard: ‘Where the truth or authenticity of facts or evidence claimed to be relevant by one party is not disputed, an objection on the ground of materiality or relevance may be noted by any other party but is not to be regarded as just cause for refusal to stipulate.’ So the proper course would be to admit to the paragraph and the document and reserve a relevance objection.” Order, at pp. 1-2.

A lot of things are real and true, but may have zero probative value as to matters in dispute. If it’s agreed to be real and true, and if one side says it’s relevant but the other says “no,” it goes in, but the objectant reserves all rights to challenge on relevance.

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