Attorney-at-Law

HE LIED – SO WHAT?

In Uncategorized on 09/29/2017 at 15:19

Y’all will remember the jumpball over the testimony of Weston Anson, IRS’ expert witness, who on cross-examination admitted he lied. And IRS likewise admitted he lied.

On the stand. Under oath.

OK, bring forth the guillotine and the sawdust.

Well, not so fast, says Judge Holmes. Perjury is a criminal offense, and I ain’t got no criminal jurisdiction.

Am I going too fast for y’all? Well, to start, read my blogpost “The Plot Thickens,” 3/9/17. That’ll give you a wee bit of background, plus Judge Holmes’ honorifics.

Now scope out Estate of Michael J. Jackson, Deceased, John G. Branca, Co-Executor and John McClain, Co-Executor, Docket No. 17152-13, filed 9/29/17.

Yes, Weston Anson lied. But he omitted two items from the Rule 143(g) list of all the stuff he wrote over the past ten (count ‘em, ten) years, and all the cases wherein he testified, whether on trial or deposition, over the last four (count ‘em, four) years. There were 100 of each type, so leaving out two isn’t the end of the world, unless the co-ex’rs are prejudiced, and they don’t claim they are.

They do claim one omission was material, but the name stated in Weston Anson’s disclosure was the d/b/a of the entity involved. “We won’t read Tax Court Rule 143(g) to require the exclusion of Mr. Anson’s testimony without some reason for treating the disclosure of a d/b/a as something other than the equivalent of the disclosure of the underlying business name.” Order, at p. 3.

So a litigant has to do a name search in who knows how many jurisdictions to find whether the given name of an entity is the name of the entity or a d/b/a? Judge Holmes, you were doing great up to that point. You just got a Taishoff “Oh, Please!”

The co-ex’rs claim Weston Anson is biased, a professional witness. OK, says Judge Holmes, but that goes to the weight I give his testimony, not to whether I toss him altogether. “Only when an expert report becomes absurd or ‘so far beyond the realm of usefulness’ does bias make an expert report inadmissible. See Boltar, L.L.C. v. Commissioner, 136 T.C. 326, 335-36 (2011). That isn’t the case here, so any bias that Mr. Anson’s false statements may reflect will be accounted for in the weight given to his testimony.” Order, at p. 3.

Finally, the co-ex’rs go to FRE 403 and 702, the “gatekeeper” rules. Trial judges have the duty to keep bogus opinions and junk science out of the courtroom. And trial judges certainly can and should toss lying witnesses.

But the Rule of Necessity, even though not stated, seems to be the main thrust. Weston Anson was IRS’ sole witness. Toss him, and IRS is left with the Michael Corleone gambit.

Judge Holmes punts: “There has to be some consequence for Mr. Anson’s false testimony about his dealings with the IRS, but to in effect strip the Commissioner of any expert-testimony about the value of the Estate’s assets because of Mr. Anson’s parsimonious relationship with the truth about his dealings with the IRS in other cases seems to us too severe. A more proportionate remedy would be to discount the credibility and weight we give to his opinions. See Contreras, 121 Fed. Cl. at 239 (stating that ‘a rational approach is to diminish the weight of th[e] expert’s testimony or to subject th[e] expert’s testimony to stricter scrutiny’).” Order, at p. 4.

If I were the counsel to the co-ex’rs, I’d await the decision, and ready my appeal.

 

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