Attorney-at-Law

STEALTH SHOT DOWN

In Uncategorized on 11/21/2019 at 15:20

No, this is not a war story. At least, not that kind of war story. But today that Obliging Jurist Judge David Gustafson has joined Judge Mark V Holmes and your reporter in shooting down the Stealth Subpoena, thereby bringing Tax Court into the last decade of the Twentieth Century.

With luck, we might make it to the second decade of the Twenty First.

Here’s Reflectxion Resources, Inc., Docket No. 12017-16, filed 11/21/19.

All y’all (going to Texas next month, so have to warm up to make sure my nearest and dearest will understand me) will remember the Reflectxologists. They were here just a couple weeks (hi, Judge Holmes) ago.

See my blogpost “Stealth Countermeasures,” 11/6/19, wherein I expressed this pious hope: “But maybe, just maybe, when IRS answers as Judge David Gustafson obliges them to do, they will stop the games and announce that, now and forever, they will notify parties when they subpoena non-party witnesses, just like the FRCP 45(a)(4) says, despite the lethargy at 400 Second Street, NW, on that score.”

Nevah hoppen, GI.

Judge Gustafson goes surface-to-air to shoot down the Stealth Subpoena “(F)or the reasons stated in petitioner’s motion, and over the objection of the Commissioner (Doc. 72)….” Order, at p. 1.

I’d love to see how IRS articulates its deep-seated opposition to complying with a Federal Rule of Civil Procedure of more than twenty five (count ‘em, twenty five) years’ standing, that every litigant, be it individual, corporate, pro se, represented, or entity, and every attorney, be they white-shoe,  single shingle, or small firm, and every government, NGO, quasi-governmental, and anyone I left out, save IRS in Tax Court only, have complied with without demur.

But Doc. 72 is stored in The Glasshouse Equivalent of Area 51, where PACER cannot tread, so one must trek to 400 Second Street, NW and beg for a peek at same.

Howbeit, Judge Gustafson orders an all-round show-and-tell.

“ORDERED that, when a party serves a subpoena on a non-party commanding the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then the party serving that subpoena shall serve a copy of that subpoena on the opposing party before the subpoena is served on the person to whom it is directed.” Order, at p. 1.

And just in case IRS used the interval between the original discovery schedule and today to send in a few Stealth Subpoenas, “…if, before the issuance of this order, either party has already served on a non-party a subpoena commanding the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then the party who served that subpoena shall serve a copy of that subpoena on the opposing party no later than December 2, 2019.” Order, at p. 2.

And just to keep the stealth stealthy, Judge Gustafson didn’t designate this order.

Note to Ch J Maurice B (“Mighty Mo”) Foley: Ex-Ch J Michael B (“Iron Mike”) Thornton sent out some proposed Rule changes in November a couple years ago (hi again, Judge Holmes). Why not make our Thanksgiving truly thankful this year by bringing Rule 147 into the last decade of the last millennium?

 

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