Attorney-at-Law

“REV UP YER ENGINES!” – PART DEUX

In Uncategorized on 03/02/2022 at 10:07

Although his Bachelor of Science degree is in accounting, not engineering, Judge Christian N. (“Speedy”) Weiler is a great fan of “the greatest engine yet devised for the discovery of truth,” as Dean Wigmore put it.

Cross-examination, done properly, can unearth, unhorse, undo, and unravel, if anything can.

I’ve said it before, but it deserves repeating: everybody’s testimony looks the same on paper; nobody’s testimony looks the same on the stand.

So Judge Speedy Weiler denies summary J to Green Valley Investors, LLC, Bobby A. Branch, Tax Matters Partner, et. al, Docket No. 17379-19, filed 3/2/22. The Greeners want partial summary J that their appraisers are Section 170 qualified, and that their appraisals clear the Reg.  §1.170A-13(c)(3) bar.

IRS says no, because they want to depose said appraisers. My readers will doubtless recall said activist appraisers tried to intervene to prevent any such deposition, and got sent off. If you don’t, see my blogpost “No Likely End,” 2/11/22. In the same order, Judge Speedy Weiler sent IRS off,  when they sought to depose, because the Greeners’ good faith reliance on whatever the appraisers produced is a question for Bobby Branch, TMP, not the appraisers.

Except maybe Judge Speedy Weiler is starting to backtrack. Cross-examination needn’t happen only at trial.

“When considering the elements of a qualified appraisal and appraisers, it appears that petitioners may have satisfied these legal requirements. However, viewing the facts and inferences in a light most favorable to respondent, we cannot conclude such as a matter of law, since there remains material facts in dispute between the parties. Respondent sought to compel the depositions of Mr. V, Mr. W, and Mr. M—which petitioners objected to—and this Court denied, without prejudice, by order served on February 11, 2022. This Court acknowledges that it would likely benefit from this cross examination testimony from these witnesses prior to ruling on the issues before the Court. Accordingly, we are compelled to deny petitioners’ motions for partial summary judgment at this time.” Order, at p. 3. (Names omitted).

So does IRS move again to depose? Has IRS cleared the Rule 74(c)(1)(B) “extraordinary” bar? If IRS moves again and wins, is this going to be a mini-trial?

To quote the youtube Tennessee (ex-Niagara Falls) gearjammer, “Rev up yer engines!”

Edited to add, 3/2/22: I couldn’t agree with Judge Speedy Weiler more: any trier of fact would definitely benefit from cross-examination of every witness, fact or expert, before ruling on the issues before that trier. But where is this cross-examination to take place? In a deposition? Triers of fact don’t attend depositions. And again, everybody’s testimony looks the same on paper. Unless there’s a trial, that paper is all a trier of fact will see. So all the deposition does is give the adversary impeachment material. I fail to see how that helps the trier of fact where the expert witness must proffer his/her/their report, which is their direct testimony per Rule 143, well in advance of trial. The adversary has plenty of time to develop their cross-examination. And nobody’s testimony is the same on the stand, which is why Rule 74(c)(1)(B) there. To make sure the trier of fact can see and hear the witness on the stand.

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