In Uncategorized on 12/09/2019 at 16:53

I’ve inveighed against trial-by-ambush before. When it came to Indians, accountants, pro ses or ranchers, I was there. So today, I continue my “don’t ambush” series with the above-entitled.

Here’s Brent Lamb & Deanne Lamb, Docket No. 4748-18, filed 12/9/18.

Brent & Deanne are on for trial on Monday. Thursday evening their trusty attorney files a motion for summary J “calling into question the validity of Treas. Reg. 1.274-5T. The following morning, counsel for the Commissioner filed a motion in limine asking the Court to preclude any argument regarding the validity of that regulation.” Order, at p. 1.

Judge Buch is not amused.

Aside from the Rule 121 60-day pretrial cutoff for summary J motions without leave of Court (and you’d best have a real good story for that one), “(T)he Court’s record shows no indication of the validity of Treas. Reg. 1.274-5T being raised at any time before the filing of Mr. Lamb’s pretrial memo. And although Mr. Lamb initially filed his case pro se, counsel has been in this case since December 2018.” Order, at p. 1.

A quick docket search shows the Lamb’s pretrial memo was filed 12/2/19, last Monday.

You can see where this is going.

“The regulation Mr. Lamb seek to challenge relates to substantiation requirements for certain expenses. See I.R.C. § 274(d) and Treas. Reg. 1.274-5T. What is required for substantiation, by its very nature, affects what might be included in evidence at a trial. And it may affect what evidence is gathered for trial and what subpoenas are issued for trial. Seeking to change the evidentiary foundation upon which a case is based mere days before trial is an unfair surprise to both the opposing party and the Court.” Order, at pp. 1-2.

No go. IRS’ motion in limine granted.

Don’t ambush the judge. Don’t even ambush the IRS.

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