The Rawat Gambit

A year ago I queried IRS counsels’ use of “attachments in the nature of evidence”, which I’ll call the Nature gambit, whereby IRS counsel tries to wild-card into evidence that which may or may not pass FRE muster, specifically to ask why petitioners are not afforded like treatment. See my blogpost “Discussion, Deliberation,” 6/24/20.

Well, today Kiran Rawat plays what I shall call the Rawat variation on the Nature gambit, in Kiran Rawat, Petitioner and Raghvendra Singh, Intervenor, Docket No. 11350-18, filed 6/4/21.

And Judge Gale doesn’t toss the Rawat variation on the Nature gambit with a curt “Save it for the trial,” as so many other petitioners receive. Zoomietrial is on for next week.

“…the Court received a mailing from petitioner postmarked May 28, 2021, that includes the following: (1) a three-page document labeled ‘Response to Pre-Trial Memorandum For Respondent’;1 and (2) a four-page document labeled ‘Plaintiff Exhibit A’. Our review of ‘Plaintiff Exhibit A’ reveals that it consists of what appear to be copies of four pay stubs (two of which appear to be identical) issued to petitioner by her employer for certain two-weekpay periods….” Order, at p. 1.

IRS counsel of course yells that Kiran blew the discovery deadline Judge Gale set back in February; all documents to be exchanged by May 21.

Judge Gale has nothing to say about why a seven (count ’em, seven) day delay might prejudice IRS.

But Kiran’s gambit doesn’t get her home free neither.

Judge Gale does order “…the Clerk of the Court shall file pages one through four of ‘Plaintiff Exhibit A’, together with a copy of the ‘Declaration of Service’ and the envelope in which the foregoing documents were mailed, as petitioner’s Proposed Trial Exhibits,” Order, at p. 2.

But Kiran should be warned. IRS is still in the game.

“…petitioner is advised that…the pay stubs have not yet been received into evidence. Whether they are received into evidence at trial will depend upon the extent to which respondent was prejudiced by petitioner’s failure to provide them to respondent on a timely basis.” Order, at p. 2.

Taishoff says:

(1) Maybe also hearsay. And anything else IRS counsel can come up with.

2) Is this gambit worth trying? It depends. What’s your case (innocent spousery with a sympathetic petitioner is better than a SNOD with a rounder-protester)? By how much did you blow the discovery deadlines? Have you maybe some kind of excuse? What’s the evidence (true gamechanger or just cumulative)? Is IRS counsel truly ambushed, or can you argue they aren’t? And if you do try it, please let me know how you make out.