In Uncategorized on 10/11/2019 at 16:06

I guess Tribune Media Company f.k.a. Tribune Company & Affiliates, et al., Docket No. 20940-16, filed 10/10/19, must have logged in and gotten their credit reports from S&P and Moody’s, from sites other than the captioned one we ordinary types use, because the Tribunes want them in and IRS wants them out.

I’ll let Judge Buch explain: “This case is about whether a transaction engaged in by Tribune … was a nontaxable contribution of capital to the newly formed partnership … or a disguised sale of assets. Debt was incurred as part of the transaction, and Tribune guaranteed that debt. Whether those guarantees were real is an issue in this case.” Order, at p. 1.

IRS claims the proffered reports deal with years after the year wherein the transaction occurred, thus irrelevant; but even if relevant, they’re either hearsay or experts’ reports not complying with Rule 143(g).

I give IRS counsel JDS a Taishoff “Good try.” But he loses, all the way.

The Tribunes claim a lot of Tax Court cases use subsequent years info to see if year-at-issue position was real. Judge Buch buys it, subject to weighing it. “Although how those guarantees were perceived in years after the transaction may be less probative than how they were perceived at the time of the transaction, that distinction goes to the weight we give the evidence when we consider it. It does not mean we should not consider the evidence at all.” Order, at p. 2.

As for hearsay, a FRE 902(11) cert plus FRE 803(6) report-kept-in-regular-course-of-business holds the reports in, for now. But lest the crew representing the Tribunes put the ’00 Krug on ice, dig this. “Petitioners did not provide any authentication of the Moody’s credit reports or establish any other hearsay exception. We will not exclude these reports now, but will decide their admissibility at trial.” Order, at pp. 2-3.

Best get the Moody’s employees familiar with credit reporting acts and practices lined up and waiting.

Finally, “(T)he credit reports at issue are not an expert’s opinion based on the facts of this case. They are experts’ conclusions drawn from facts gathered for the purpose of rating Tribune’s credit worthiness at the time they were created. They are not documents or reports created for this litigation. These reports are factual evidence and not expert witness reports.” Order, at p. 3.

JDS’ motions in limine all crash, for now at least.

I might most humbly suggest to Judge Buch that when he gets out the scale to weigh S&P’s and Moody’s opinions on anybody’s creditworthiness, he recall that these were the guys who AAA-rated the subprime junk pools that set off the Black ’08.

And many thanks, Judge, for this designated hitter on a Friday before a three day weekend (“A klug zu Columbus’n,” y’all), when there are as usual no opinions, and 150 orders for me to plow through. Have a great weekend.

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