Attorney-at-Law

“EACH WILL BEAR ONE’S OWN BURDENS”

In Uncategorized on 09/02/2016 at 17:58

When IRS tries this Scriptural gambit, it doesn’t fly with The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Incomparable, Incontrovertible, Irrefragable, Indomitable, Ineluctable, Ineffable, Illustrious and Indefatigable Foe of the Partitive Genitive, and Old China Hand, Judge Mark V. Holmes, in his second designated hitter of the day, Michael V. Shannon & Hope W. Shannon, Docket No. 16441-12, filed 9/2/16.

I’m ready for a dark rum and cola with a big chunk of lime just about now, but Judge Holmes has “a couple pretrial motions pending”, Order, p. 1 [sic], before sending IRS and Mike & Hope off to try their troubles in Birmingham.

Mike’s & Hope’s trusty lawyer, whom I’ll call Chris, hits IRS with some discovery demands, which Judge Holmes doesn’t even itemize as he grants them.

Then Chris throws a couple requests (hi, Judge Holmes) for admissions (RFAs) at IRS, which here in NY State we call notices to admit, and I love them. Very useful tool, cheap and easy.

IRS ripostes with the title of this blogpost.

“For RFAs 1, 6, and 7 respondent objected on the basis that the burden of proof is on petitioners. The Court agrees with petitioners that this is not a good ground for objection. These RFAs seek to show that respondent doesn’t know of facts to justify its litigating position on the issues described. Petitioners are not, by seeking this information, trying to shift the burden of proof; they are trying to find out if respondent has relevant information. We’ve said for forty years that this sort of simplification of pretrial preparation is one of the aims of the request-for-admissions tool. See Estate of Allensworth, 66 T.C. 33, 39 (1976).” Order, at p. 1.

But IRS may have a save. “In his answers to RFAs 9 and 10 respondent made the same objection but coupled it with a cross-reference to earlier denials that were sufficient. The Court will overrule the objection and require a better response to these, but recognizes that a denial-with-cross-reference might well suffice.” Order, at p. 2.

Chris wasn’t wrong to try those RFAs. The previous answers might not fly, when explicated.

Next, maybe Chris and Judge Holmes both read my blogpost “Stipulated but Irrelevant,” 8/30/16.

“Respondent also objected to RFA 11 on the additional ground that it concerned how respondent made a determination that was reflected in the notice of deficiency. This is generally a good objection…, but it is an objection as to relevance. Our Rule 90(c) is clear that such an objection should be noted but ‘is not to be regarded as just cause for refusal to admit or deny.’” Order, at p. 2.

It’s the old “past isn’t even prologue, never look behind the SNOD” defense, but that’s only relevance, not fact.

Chris gets a Taishoff “Good Job, First Class.”

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