Attorney-at-Law

“ALL OR NOTHING AT ALL”

In Uncategorized on 10/12/2016 at 23:18

Coming back from a three-day layover, Tax Court is remarkably quiet. No opinions, and three of the four designated hitters are ho-hums.

But count on that Obliging Jurist, Judge David Gustafson, to reprise Jack Lawrence’s immortal words in the Frank Sinatra 1939 hit. Here’s Anthony Sean Martinez, Docket No. 14383-15, filed 10/12/16.

The issue is Anthony Sean’s medical condition: is it combat-related? Check out Section 112 and the regs. It could mean real money.

Well, trial ended this past May. Judge Gustafson asked Anthony Sean if he wanted to put in any more evidence, whether witnesses or papers. “No, Your Honor, I do not.” Order, at p. 1.

Of course the pretrial standing order is “swap all documents you will put in on the trial at D minus 14 days.” Or forever hold whatever.

Four months post-trial, Anthony Sean’s post-trial brief featured exhibits. These were documents he hadn’t put in on the trial.

Judge Gustafson treats the post-trial brief as a motion to reopen the record, and asks IRS to weigh in. IRS, of course, asserts untimeliness and prejudice.

So Judge Gustafson has a phone-a-thon. And he tells Anthony Sean the words Jack Lawrence wrote so many years ago.

“During the conference call, petitioner explained that the new documents are selected pages from his 600-page medical file, which includes personal, medical information irrelevant to this case. The Court explained to petitioner that, if the Court were to allow him to rely on the new documents, the Court would require him to provide the entire file to his opponent, would order a supplemental trial session during which petitioner would be subject to cross-examination on the new documents, and would allow respondent to offer into evidence any additional relevant pages from the file.” Order, at pp. 1-2.

In other words, the Rule of Completeness. If you want to draw the Court’s attention to one part of a document, the whole document goes in, and the other side gets to read in the nasty parts. And if you put any part of your physical or mental condition at issue, the other side gets to check out all of it, not just the part you want.

Anthony Sean decides that discretion is the better part.

“Petitioner stated that he is not willing to disclose the entire file to the IRS, and he seemed to indicate that he is not willing to incur the risk that additional pages might become part of the record in this case.” Order, at p. 2.

So the record remains shut, and the new documents are out. “…it would be unfair to allow petitioner to offer cherry-picked documents from his file in order to prove the medical facts he seeks to prove, without allowing respondent to explore his medical file to test the correctness of petitioner’s contentions.” Order, at p. 2.

 

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