Attorney-at-Law

UPPING THE ANTE – PART DEUX

In Uncategorized on 01/16/2020 at 15:21

Amazon Inc. & Subsidiaries, Docket No. 21959-16, filed 1/16/20, is going to trial in less than a month. IRS moved to amend its answer in late December, to increase the alleged deficiency.

For you procedure nerds, Judge Pugh has some guidance.

Of course Amazon opposes the amendment. “…opposition is based primarily on the possibility that petitioner would be prejudiced if we allow the amendment but petitioner’s opposition does not cite specific examples of prejudice (for example, how the amendment will change the evidence petitioner would present at trial). We therefore will grant respondent’s motion and instead will allow petitioner to identify any prejudice during the course of the trial, at which time we will address it.” Order, at p. 1.

By now, deadlines for discovery have passed, so both sides must have their documents and settled issues stiped in (or disputes laid out), witnesses listed and on-call, expert reports (if any) exchanged, and any depositions completed.

It seems to me that a small issue might have been conceded if it cost more to fight than to pay, but if the cost to pay increased by an order of magnitude, maybe it might be worth withdrawing from the stip and fighting. In any case, be specific; a mere generality won’t get it.

But are there dueling burdens of proof? Is Amazon on the hook to prove only that the base deficiency is incorrect? Is IRS on the hook to prove the added amount only, or the entire (new) deficiency?

Judge Pugh: “We also will defer ruling on the effect of respondent’s amendment on the burden of proof- that is, whether respondent bears the burden of proof as to the increase alone or as to the entire deficiency, as petitioner claims. That question is better left to post-trial briefing against the backdrop of a complete record.” Order, at p. 1.

A free translation from the judgespeak: I make “preponderance of the evidence” 8 to 5 in the morning line.

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