Attorney-at-Law

TORPEDOING THE SUBMARINE

In Uncategorized on 09/09/2017 at 02:06

Duane Pankratz, et al. Docket No. 21255-13, filed 9/8/17, and his sly counsel play a cool hand in Tax Court, even without the als.

Duane’s counsel dissects the barebones SNOD and the even barer-boned answer to Duane’s petition by means of skillful interrogatories, and gets Judge Holmes to knock out IRS’ attempt to try by consent Duane’s Section 469 material participation or whether Duane’s sale of one of his businesses’ building was a bargain sale. IRS could have amended its answer when discovery turned up some of this stuff, but didn’t. Game over on those issues.

Then, despite an order directing Duane’s counsel to pony up all documents to be introduced at trial, Duane’s counsel slyly drafts Requests For Admissions (RFA) and therein tries to sandbag IRS by sneaking in documents otherwise precluded by the time limits of Judge Holmes’ earlier order aforesaid.

“In drafting the RFAs, petitioner attached at least some documents that will be subject to exclusion; he also apparently attached some that respondent thinks are excludable but petitioner does not. Petitioner then phrased the RFAs not as straightforward ‘Petitioner paid or incurred expenses in the amount of $ X for such and such category of expense as claimed on Schedule C, line so and so;’ but instead as ‘Petitioner provided proof of payment and invoices for 2008 Schedule C-1 costs of such and such in the amount of so forth.’

“Respondent understandably views this as a backdoor way to get in evidence subject to the Court’s preclusion order. His responses generally took the form of denying that the attached documents had been provided in time, and then something about the substance of the RFA.” Order, at p. 2.

IRS’ carefully crafted responses pass muster.

I’m a great fan of notices to admit, as we State courtiers call Requests for Admissions. You can always try to submarine good stuff into evidence by any means at hand, but don’t be surprised if you’re torpedoed in a designated hitter.

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