In Uncategorized on 03/29/2018 at 15:33

I don’t remember in which panel discussion on Tuesday the “secret subpoena” was mentioned. Of course, this was a reprise of the Rule 147 vs FRCP 45 joust, that I’ve been chronicling for the last three years. If you tuned in late, read my blogpost “The Stealth Subpoena is Alive and Well,” 12/2/16, which chronicles the tale as I told it.

Always eager to rush in where angels et cetera, I corrected the panelist viva voce with “it’s the stealth subpoena.”

Ch J L Paige (“Iron Fist”) Marvel seemed to think that I, or perhaps the panelist, had imputed to Tax Court some nefarious motive, and rushed to defend the Court.

I certainly did not suggest at any time that the divergence of third-party subpoena issuance practice arose as a result of anything other than what Judge Holmes called it back in 2015: “it’s just an example of the two sets of rules drifting apart over time.”

I hope Ch J Iron Fist did not take my remark as being either disrespectful, or worse, derogatory to the Tax Court.

But the drifting apart has consequences, as I pointed out in my above-referred-to blogpost. IRS, seeing that Rule 147 doesn’t require a view halloo to opposing party or counsel when they subpoena third parties, doesn’t give it. And there is no sanction.

Discontinuities, divergences over time, unintended consequences, the gentlest of finger-fehler, all provide opportunities for gamesters.

I ought to have raised this back when ex-Ch J Michael B (“Iron Mike”) Thornton requested proposals for rule changes back in January, 2016. I didn’t, raised something else, and got a dope-slap from the ABA Tax Section, to which august body I do not belong. And now I know the fulness of my gain.


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