In Uncategorized on 12/26/2019 at 19:25

Antoine A. Johnson, Docket No. 17324-18, filed 12/26/19, doesn’t mind if Bank of America hands over some papers to IRS before he goes to trial on the 1099-C BoA gave him. Antoine claims someone stole his bankcard and ran up a lot of debt. IRS gave BoA a trial subpoena (Form 14), but quite reasonably wants the stuff sooner, and moves for an earlier response.

BoA won’t do anything sooner than the subpoena requires unless a judge tells them, and Form 14 says show up at USTC on the trial date with the stuff.

“Given that the Form 14 subpoena duces tecum expressly directs the subpoenaed person to produce documents on the date of the calendar call, respondent is unable, without Court approval, to specify a date other than the calendar call date. Respondent’s motion would ensure receipt of the subpoenaed documents with sufficient time to review them and pursue further inquiry in the event the documents produced are either not in full compliance with the subpoena or otherwise contain information that may lead to discovery of more relevant information.” Order, at p. 2.

Makes sense. If Antoine is right, then some or all of the debt BoA relieved wasn’t his, so the SNOD is reduced or invalid. And checking it out pre-trial will save a lot of time, because if the stuff only shows up at trial, a lot of scarce judicial resources will be wasted as counsel and Antoine go over the stuff page by page.

But that Obliging Jurist, Judge David Gustafson, won’t agree to a change of the date whereon BoA’s person shows up with the stuff for IRS to eyeball.

Rule 147 allows for subpoenas duces tecum when deposing a nonparty, but unlike FRCP 45 (a)(1)(A) and (c)(2)(A), Rule 147 makes no provision for a subpoena duces tecum to non-parties for documents alone.

And unlike the stealth subpoena issue, which I’ve blogged in extenso, Judge Gustafson thinks that Congress has formally handcuffed pore l’il ole Tax Court.

Section 7456(a)(1) gives Tax Court judges the power to require production of documents “at any designated place of hearing.”

“A Tax Court litigant may serve on a third party a subpoena to produce documents at a trial session and, at that session, may call on the Court to enforce the subpoena. A litigant who has served such a subpoena may ask the third party to voluntarily produce the documents in advance of the trial session and, if the third complies, excuse him from appearing at the trial session. A litigant who has served such a subpoena may also ask the Court to attempt a telephone conference with the parties and with counsel for the third party for the purpose of encouraging such voluntary production of documents. But given the wording of section 7456(a), we do not authorize the service of a subpoena of the sort that the Commissioner here requests.” Order, at p. 3.

It’s easy to blame BoA for not playing nice, but it’s not their pony and it’s not their horserace. BoA has bank secrecy laws to consider. Since Antoine is pro se, any consent of his to handing over the stuff is hardly informed consent. A judicial subpoena clears their decks of any liability to Antoine or anyone else.

Pore l’il ole Tax Court, step-child of Congress.


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