Attorney-at-Law

MISE EN PLACE

In Uncategorized on 06/25/2018 at 15:45

Fans of the late and much lamented Anthony Bourdain are fully familiar with the abbreviated version of the title to this blogpost, meeze. For those who aren’t, it means everything the line chef needs, laid out and set up so the line chef can prepare whatever meal is wanted with the fewest possible motions.

Today we have two for the Tax Court practitioner, one from that Obliging Jurist Judge David Gustafson (Murfam Enterprises LLC,  Wendell Murphy, Jr., Tax Matters Partner, et al., Docket No. 8039-16, filed 6/25/18),  and the other from ex-Ch J Michael B (“Iron Mike”) Thornton (Estate of Virginia M. Lococo, Deceased, Ellen Rene Jarros and Mary Jean Forsyth, Co-Trustees, Docket No. 20996-17, filed 6/25/18).

Judge Gustafson has the battle of the stips. IRS wants a Rule 91(a)(1) basic, just returns, forms, documents, SNODs and dramatis personæ; Murfam ripostes that this is incomplete, and Rule 91(a) mandates a stip covering all matters not privileged that bear on the case, whether fact, opinion or application of law to fact. So Murfam wants to prepare its own all-embracing stip and give that to IRS.

Judge Gustafson, normally obliging to a fault, detects a wee bit of stalling here.

“…we warn the parties that we and they have limited time between now and trial, that we have limited curiosity about the details of their correspondence, and that neither the Court nor the parties should allow themselves to be distracted from the actual merits of this case by fruitless argument about and adjudication of the parties’ correspondence.” Order, at p. 2.

In a complex case (and apparently Murfam is one such) there are sometimes multiple stips, as the parties horsetrade (Judge Gustafson’s word) and work things out. Sometimes there is gameplaying, with each side sending the other a draft stip replete with minefields to provoke endless haggling.

This being Judge Gustafson, Murfam can explain. “However, no such explanation could have as good an effect as the prompt filing of a stipulation of the basic facts of this case.” Order, at p. 3.

Ex-Ch J Iron Mike has a four-point plan that should be in every Tax Court practitioner’s checklist file.

First, lay out your take on the facts and the law, both with any subsidiary points, and sufficiently detailed so the judge can decide the entire case on those bases.

Second, “A clear, complete, and concise exposition of each party’s position and the theory underlying that position with respect to each of the issues.” Order, at p. 1. Also state in narrative form what you expect to prove on the trial.

Third, will expert testimony be involved? If so, state the nature of such testimony and what questions will be put to the expert.

Fourth, status of preparation of stip of facts and status of trial preparation.

Ex-Ch J Iron Mike will require memos from both sides on these points. They will control admissibility of evidence and what positions parties may take at trial. These memos are the contrapositive of the advertising slogan of Yellow Pages of old: “If it’s not in here, it’s not out there.”

Most of this is commonsense, but like common sense, it’s very uncommon.

 

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: