In Uncategorized on 04/28/2017 at 16:11

No, I’m not pocketing my winnings from Rick Blaine’s illegal gambling operation, but today’s designated hitter from The Great Dissenter, a/k/a The Judge Who Writes Like a Human Being, s/a/k/a The Implacable, Irrefragable, Illustrious, Incontrovertible, Ineffable, Ineluctable, Imperturbable, Indefatigable and Insuperable Foe of the Partitive Genitive, Master Silt Stirrer and Old China Hand, Judge Mark V. Holmes, stopped me in my tracks.

Turns out an expert witness hired by IRS actually lied. The expert did not misspeak, neither were his words inoperative. He lied in his expert’s report, which is deemed direct testimonial evidence per Rule 143(g)(2).

And about what did this expert lie under oath?

Judge Holmes lays it out in Estate of Michael J. Jackson, Deceased, John G. Branca, Co-Executor and John McClain, Co-Executor, Docket No. 17152-13, filed 4/28/17.

“During the trial the Commissioner called an expert witness to testify about the value of some of the Estate’s assets. During cross-examination he lied about working on similar issues for the IRS in a case brought by the Whitney Houston Estate and then admitted to the lie when confronted by further questions and documentary evidence. The IRS moved…to strike this challenging testimony or at least to seal it. (The Jackson Estate has also moved to strike the testimony — but only if all the witness’s testimony is stricken as tainted by perjury. Briefing on that motion is still under way.)” Order, at p. 1.

IRS claims everything about the late Pop Queen’s taxes are protected by Section 6103. Her estate’s under audit, so everything is sealed (sound familiar? Sorry, forgot this is a non-political blog).

Except IRS didn’t reckon with Judge Holmes’ scissors and paste.

Judge Holmes only let in the first and last pages of the lying witness’ report in the Whitney Houston case, and restricted direct and cross to the fact of the expert’s work in the case, and not any data or conclusions from that case.

But IRS claims everything is off the table.

That’s the only move left when your witness unravels before your very eyes, and you seriously consider another line of work. A colleague once offered me the chance of working on the winelist at his restaurant. Never happened, but there are moments when sampling Insignia and Corton Charlemagne, and discussing with a knowledgeable customer the best accompaniment to bigarade of Nantais duck sounds pretty good.

Judge Holmes: “It’s the first point — that being hired by the IRS to value assets of a taxpayer is protected information — that is the more serious objection. The problem for the Commissioner here is that it is a matter of public record that the Houston Estate is also in Tax Court to challenge the Commissioner’s determination of a deficiency, and that part of that challenge includes a dispute about the value of Ms. Houston’s intellectual-property rights at the time of her death. See Estate of Whitney Houston v. Commissioner, docket no. 12098-16. This means that the fact that the Houston Estate is being audited is no longer information protected by I.R.C. § 6103: ‘[0]nce information is lawfully disclosed in court proceedings, ‘§ 6103(a)’s directive to keep return information confidential is moot.’ Lampert v. United States, 854 F.2d 335, 338 (9th Cir. 1988) (quoting Figur v. United States, 662 F. Supp. 515, 517 (N.D. Cal. 1987)).

“The cases on which the Commissioner relies both arose from disclosure of information in addition to the disclosure that he had determined a deficiency or was investigating another taxpayer. See Tanoue v. IRS, 904 F. Supp. 1161, 116768 (D. Haw. 1995) (agent’s interview notes and recordings not disclosed by public record of criminal tax investigation); Husby v. United States, 672 F. Supp. 442, 444 (N.D. Cal. 1987) (assessment of tax not disclosed by petition).” Order, at p. 2.

Sorry, IRS, it’s out there for all to see.

And sweat your witnesses a wee bit harder. In the words of the Man From Mumbai, “It ‘alves the gain but safer you will find.”

  1. Are expert witnesses ever charged with perjury?


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