In Uncategorized on 04/28/2022 at 13:44

Judge Christian N. (“Speedy”) Weiler walks us through the steps necessary to obtain a nonconsensual deposition in Buckelew Farm, LLC f/k/a Big K Farms LLC; Big K LLC, Tax Matters Partner, Docket No. 14273-17, filed 4/28/22. And if the Buckelews sound like old friends, I’ve blogged this case four (count ’em, four) times so far, and it looks like a gift that keeps on giving.

In today’s episode, IRS, tired of having been stonewalled for documents since 2017, served a deposition notice. The Buckelews claim IRS hasn’t satisfied the Rule 74(c) barriers to this “extraordinary” means of discovery, namely, viz., and to wit “(1) Whether the movant has established a specific and compelling basis for the deposition; (2) Whether the movant intends the deposition to serve as more than a substitute for cross-examination at trial; and  (3) Whether the movant has had prior opportunities to obtain the desired information or could obtain it through other means or from another source.” Order, at p. 2.

Well, Judge Speedy Weiler finds what IRS wants is certainly relevant (and remember, the relevance bar is pretty low).

“Respondent seeks to depose the Partnership on the following: details surrounding the easement creation, donation, and the deduction; details concerning any opinions of value regarding the underlying property to the easement; details surrounding the marketing and selling of the easement deduction to potential investors; details surrounding the creation of the easement; details surrounding the records maintained by the Partnership regarding the transaction; and information reflective of the ‘state of mind’ of the Partnership and defenses relating to asserted penalties.

“The Court finds that respondent has established a specific and compelling need for the deposition of the Partnership. Second, respondent has shown that he intends the deposition to serve as more than a substitute for cross-examination at trial. Lastly, it appears that the Partnership has direct knowledge related to relevant issues in this case and respondent’s efforts to obtain this information through other means have been (in full or in part) unsuccessful.” Order, at pp. 4-5.

And that IRS’ counsel got to eyeball the site changes none of the above.

So hold the deposition before Memorial Day.

Taishoff says we know why depositions are “extraordinary” in Tax Court cases. The sixty-buck-ticket-to-justice never provides a result that would cover the costs of counsel, preparation, stenographic and transcription services, travel, and loss of time, which are the invariable concomitants of a deposition. See my blogpost “Don’t Suppose You Can Depose,” 12/2/13.

The ordinary run-of-the-mill pro se facing a low four-figure deficiency couldn’t afford counsel for even a two-hour deposition. But that same pro se isn’t marketing and selling an eight-figure writeoff either.

In cases like the Buckelews, where there’s a $45 million deduction at issue, with multiplex counsel subbing out and subbing in, it shouldn’t take four (count ’em, four) years to obtain discovery.

And while we’re discussing changes to the Tax Court Rules of Practice and Procedure, maybe so it might could possibly be that the one-size-fits-all deposition rules need a rule-of-scale provision. Maybe in any deficiency with tax due over $100K, depositions should be treated as they are in every other court I know of.

Otherwise the CLE merchants can add to their inventory the title of this blogpost hereinabove set forth.


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