In Uncategorized on 11/13/2020 at 16:40

While it was a good idea, mandatory CLE has spawned the “Win Your Case Anywhere But In The Courtroom” school of practice. Win with the demand letter, in the pleadings, at discovery, by judge-or- jury-shopping, or at simulated jury selection or at mock-trial, the presenters and lecturers have always been ding, dinging their pet panaceas into our ears.

It’s even infected the play-nice corridors of The Glasshouse. Today we have Judge Courtney D. (“CD”) Jones giving the win-at-discovery types a break in Picayune Pearl Aggregates, LLC, Picayune Pearl Aggregates Investors, LLC, Tax Matters Partner, Docket No. 7045-19, filed 11/13/20.

The Picayunes want IRS’ fact and expert witness’ list, with summary of testimony, but IRS says that’s a work in progress. Judge CD Jones isn’t buying.

“To the extent respondent has identified potential witnesses for trial and the nature of their testimony, he must disclose such information to petitioners. If respondent has not yet identified potential witnesses, we remind respondent that once he has in fact identified such witnesses, Rules 102(1)(A) and (B) require him to seasonably supplement any prior response concerning the identity and location of persons having knowledge of discoverable matters, as well as the identity of each person expected to be called as an expert witness at trial, the subject matter on which such person is expected to testify, and the substance of such person’s testimony.” Order, at p. 1. (Footnote omitted).

Now the Picayunes have a wishlist of what supports whatever IRS contends.

“Discovery is to assist the parties in their preparation for trial. ‘To prepare properly for a trial, it is necessary for each party to know the position of the other party, and discovery may be used to clarify that position.’ Petitioners’ interrogatories 4 through 25 primarily seek to clarify respondent’s position, and we find they request discoverable information. In response to these interrogatories, respondent states that the FPAA sets out his position, or that petitioners have not ‘established that the claimed deduction meets all of the requirements of Internal Revenue Code Section 170.’ We conclude that respondent’s responses, which consist of high-level contentions, are inadequate because they fail to facilitate reasonable trial preparation….” Order, at pp.1-2. (Citations omitted).

And IRS’ boilerplate “work product” and “unduly burdensome” objections founder for want of substantiation.

 Finally, IRS tries to jump aboard Greenberg’s Express, but miss their footing. “…respondent argues that interrogatories 23, 24, and 25, which inquire into the bases for the positions and penalties asserted in the FPAA, improperly seek information behind the FPAA. We have denied discovery requests when the taxpayers argue that the Commissioner’s deficiency determinations are arbitrary and capricious or challenge the Commissioner’s motives or procedures in making the deficiency determination. But the question of whether the deficiency notice is arbitrary or capricious was not placed in issue by these interrogatories. Rather, petitioners’ interrogatories seek information as to the grounds on which respondent relies to deny the deduction at issue. Therefore, respondent’s reliance on Greenberg’s Express v. Commissioner in this context is misplaced.” Order, at p. 2 (Citations omitted).


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