Attorney-at-Law

“WIN YOUR CASE BY EXCLUSION”

In Uncategorized on 09/23/2016 at 19:11

This seems to be the newest CLE flavor-du-jour, and both sides are playing it for all it’s worth today.

The idea is to knock out your opponent’s expert on a motion in limine. But all it’s worth in Judge Holmes’ courtroom is a direction to go try the case.

So the designated hitter (thanks, Judge) is Oakbrook Land Holdings, LLC, William Duane Horton, Tax Matters Partner, Docket No. 5444-13, filed 9/23/16.

It’s a conservation easement case, so there’s the usual joy-forever motion to knock out the easement on the ground that the donor reserves the right to build some structures on the property post-donation, and get credit for them if the easement is extinguished.

IRS also claims the easement is void because indefinite, because where these structures are supposed to go is unclear.

But the property itself is set forth clearly enough, and the structures should only impinge on the value ascribed to the easement.

IRS wants to rely on “a couple conservation-easement cases in which we held that a reserved right to amend made the easements nonperpetual.” Order, at p. 2.

Judge, I had confidence in you; I was sure you’d exclude the partitive genitive at least once. And I’ve blogged both those cases, of course.

Howbeit, these objections are matters to be elaborated and expatiated upon at trial.

IRS wants an amendment to its answer, raising a 20% undervaluation chop. It’s past the thirty-day freebie, and IRS has no good reason for delay, but there’s no prejudice to Oakbrook. The value is whatever it is (or whatever can be proven that it is), and that’s the whole point of the trial. So The Great Dissenter gives IRS its amendment, with the burden of proof thrown in at no extra charge.

Oakbrook wants to toss an IRS expert for too much hindsight in valuing the easement. “Oakbrook is right that hindsight shouldn’t affect an appraisal, with the important caveat that an expert may consider reasonably foreseeable events as of the date of valuation. But its objection is based on suppositions that Barber did so — for example, that in a table of ‘outcomes’ the outcomes must have occurred after the date of valuation or that building-permit data from 2008 wouldn’t have affected values during 2008 because they would have been unknown at the time.” Order, at p. 3.

But this is a matter for cross-examination and argument, not exclusion.

Ditto IRS’s attempt to toss Oakbrook’s expert. He got the acreage wrong, so IRS claims he didn’t appraise the right parcel. Sloppy proofreading hurts credibility, says Judge Holmes, but let IRS sweat the appraiser on cross-examination.

Even less useful is IRS’ claim that the appraiser isn’t licensed to appraise in the State where the property is located. But there’s only one Tax Court opinion remotely on point, and IRS doesn’t cite it. Judge Holmes does, and it not only lets in the unlicensed appraiser’s report, but it accepts most of it.

So put it all in, and The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Inveterate, Implacable, Indefatigable, Ineffable, Ineluctable, Irrefragable, Incontrovertible and Indispensable Foe of the Partitive Genitive, and Old China Hand, will sort it out.

And don’t forget: “The parties should also be aware that, although the Court’s rules presume that an expert’s report is his direct testimony, this division of the Court has had success with allowing 20 minutes or so of direct testimony to allow minor amendments to a report and to enable counsel to highlight the most important parts of the report in some concise way. It is very probable the Court will do that in this case as well.” Order, at p. 3.

Go try the case, guys.

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