In Uncategorized on 06/17/2020 at 20:02

I’m sure it’s no longer the case, and even in my young day, when we used that nomenclature for more than geographical reference, it wasn’t universally true. But in my salad days at the Bar of Our Fair State, we used that phrase to denote a pettifogging, sly, sharp practice that supposedly flourished on that thoroughfare in a county just across the river (which isn’t a river, but that’s another story) from our Minor Outlying Island.

I can’t end today’s blogging without a word from Judge Albert G (”Scholar Al”) Lauber. He gives us a designated hitter, wherewith he upbraids IRS’ counsel for discovery tactics not dissimilar from those more particularly described in the title set forth at the head hereof (as my already-on-their-second-Grey-Goose-and-tonic colleagues would say).

Little Horse Creek Property, LLC, Little Horse Creek, LLC, Tax Matters Partner, Docket No. 7421-19, filed 6/17/20, wants Judge Scholar Al to review for sufficiency IRS’ responses to the Little Horses’ request for admissions.

Ya gotta know I love the request for admissions. Cheap, quick, and smokes out adversaries.

Y’all will recall IRS wanted partial summary J (another favorite tactic of mine, when the paper barrage has lifted and the infantry starts moving), while deciding the which Judge Scholar Al stayed all discovery save the aforesaid requests for admissions. No? Well, see my blogpost “Friday on Friday,” 4/17/20.

“…respondent filed his responses to petitioner’s First and Second Requests for Admissions. Apart from admitting that certain language contained in the easement deed was contained in the easement deed–admissions that were meaningless–respondent did not admit to any fact but simply provided boilerplate objections. Primarily, respondent contends that the facts about which petitioner inquires are not relevant in light of respondent’s legal theory and that petitioner’s requests are premature in light of respondent’s pending motion for summary judgment.” Order, at p. 2.

Need I say that Judge Scholar Al is less than impressed with such a response?

“A party opposing discovery has the burden of establishing that the information sought is not relevant or is otherwise not discoverable, e.g., because it is protected by privilege. For purposes of discovery the standard of relevancy is liberal: our Rules permit discovery of any material relevant ‘to the entire “subject matter” of the case.’ A party may seek discovery of information if that information is reasonably calculated to lead to admissible evidence or if it may assist that party in understanding relevant material. If information is relevant to a party’s legal theory, it is discoverable even if that legal theory is debatable or unsettled. It is improper for a party to refuse to answer discovery because it believes the opposing party’s legal theory to be incorrect.” Order, at p. 2. (Citations omitted, but get them for your memo of law).

Besides, Judge Scholar Al most particularly wanted discovery on the points raised in the requests.

“Our… order expressed our view that answers to petitioner’s requests would assist us in determining whether there are any genuine disputes of material fact. But respondent supplied no answers, only boilerplate objections. We will therefore direct respondent to file and serve on petitioner forthright and comprehensive responses to the requests for admissions enumerated below.” Order, at p. 3.

But IRS’ counsel, whom I don’t name because I am a charitable type under this curmudgeonly veneer, really I am, isn’t done.

“Petitioner also requested four admissions with respect to whether respondent had satisfied the requirement of I.R.C. § 6751(b)(1) that all penalties receive timely supervisory approval. Rather than answer these questions, respondent in each instance objected that petitioner had not attempted to obtain this information during informal discovery. See Tax Court Rule 90(a). Rather than waste additional time skirmishing over this question, we will direct respondent to file forthright and comprehensive responses to each of petitioner’s requests relating to I.R.C. § 6751(b)(1).” Order, at p. 3.

But of course counsel for the Little Horses, a heavy-hitting Peachtreet Street white shoe, is also trying for an extra base. Judge Scholar Al knows that game well.

“The rest of petitioner’s requests seek to elicit admissions concerning respondent’s legal position in other proceedings and information regarding different land conservancies. Petitioner remains free to cite this material or propose its inclusion in a stipulation, but we will not require respondent to file responses to these sorts of questions.” Order, at p. 3.

From the foregoing, it seems to me that PLR 200836014 (June 3, 2008) is gonna get a real workout on the easement circuit.







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