In Uncategorized on 03/12/2019 at 16:28

STJ Rob’t N Armen is a Judge With a Heart. I’ve blogged his lenity to repentant sinners, but today he has no sympathy for the stonewalling Ogden Sunseteers in this designated hitter, Richard G. Saffire, Jr., Docket No. 101-18W, filed 3/12/19. Rich claims he blew first, and gave CID and the Ogden Sunseteers a bunch of stuff,  but the Ogden Sunseteers either lost or sat on his file for five (count ‘em, five) years, while some other blower jumped his claim.

“It is known that at the very least an administrative proceeding was undertaken against the taxpayer and/or the advisor. And petitioner posits from public information that ‘large monetary recoveries’ from the taxpayer resulted from such proceeding and that the Securities and Exchange Commission (SEC) “collected more than $1 million in a related action against the Advisor.’

‘During the aforementioned 5-year time frame petitioner periodically contacted the Whistleblower Office to inquire about the status of his claim and was told each time only that his claim was ‘still open’. Order, at p. 3.

Finally, as aforesaid, Rich got a turndown from the Ogden Sunseteers. He volleyed off comments, got a final denial of claim letter (apparently so denominated, to prevent the epistolary counterbattery fire that once prevailed) and he petitions.

Rich tries playing nice, asking for documents. Counsel responds with 392 (count ‘em, 392) pages entirely redacted, and copies of what Rich sent them. So Rich moves for production.

“Petitioner seeks discovery regarding, in part, ‘what information the Commissioner relied on, if not petitioner’s.’ Respondent seeks to resist discovery by alleging that ‘respondent did not use any of petitioner’s information’ and asking petitioner to accept his word. In the Court’s view, this ‘Trust me — It wasn’t yours’ defense is insufficient.” Order, at p. 7.

Counsel’s boilerplate “overbroad and unduly burdensome” kvetch (please pardon this arcane technical term) doesn’t cut it either.

“Viewing petitioner’s request more expansively, respondent’s argument that it is overbroad and burdensome is undercut by respondent’s further argument that the Court should hold petitioner’s motion to compel in abeyance until respondent can file a motion for summary judgment and ‘establish a firm timeline and chain of custody for petitioner’s claim information that supports respondent’s position.’ It is axiomatic that a party filing a motion for summary judgment bears the burden of establishing that no genuine issue of material fact remains in dispute. If respondent thinks that he can shoulder such burden, then there is no reason why he cannot comply with petitioner’s request and not merely select documents to disclose that support his position.” Order, at p. 9. (Footnote omitted, but it says counsel claimed to be preparing this motion for summary J last October, and so far nothing.)

And Section 6103(h)(4)(B) lets this stuff in, subject to a Rule 103 protective order that STJ Armen issues at no extra charge. Read it, practitioner; it has useful stuff.

And if counsel has any privilege objections, let each objection “…be individually and specifically supported by the specific basis therefor.” Order, at p. 11. (Emphasis by the Court).

While Chief Whistler Lee D. Martin is a delightful luncheon companion, as I learned at the last Tax Court Judicial Conference, his legal team needs a wee talking-to.

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