In Uncategorized on 05/20/2022 at 18:06

It seems that, at long last, mirabile dictù, there is an accessible database of the Tax Court’s orders, such that a practitioner may actually now find that which I was posting back in 2013 via the old discredited Blackstone system. See my blogpost “Protection,” 11/21/13. Took the Genius Baristas less than ten (count ’em, ten) years to make it happen.

Judge Mark V.  Holmes man-‘splains in CFM Insurance Inc., et al., Docket No. 10703-19, filed 5/20/22.

“One of petitioners’ expert witnesses…submitted a report in which he relied in part on proprietary data. * * * This attracted a motion to strike from respondent, because Rule 143(g)(1)(B) requires data on which an expert relies to be shared with the opposing party. Petitioners object on the ground that the data is entitled to protection as proprietary. The obvious solution — a negotiated protective order limiting the use of any proprietary information — is a problem because respondent’s counsel doesn’t have delegated authority to sign one on behalf of the Commissioner. (The IRS takes the position that any such information should instead be protected under Code section 6103.).” Order, at p. 1.

OK, but trial is coming on in a month.

So Judge Holmes does one of his celebrated phoneathons. At the close of the session, a solution emerges.

“The solution was for petitioners’ counsel to move for a protective order with suggested language. She has now combed through our court’s own newly-accessible database of orders to do so. Although respondent’s counsel had to object, he has at least been consulted on the proposed language.” Order, at p. 1.

Given the swingeing penalties visited upon IRS personnel for Section 6103 leakage (which surpass even those for Supreme Court equivalents…but this is a nonpolitical blog), I am sure IRS counsel must continue to object.

But his protests go unheeded.

“Because the requested motion and suggested language balance the need of respondent to be able to understand and rebut petitioner’s expert-witness report and the legitimate request of petitioners’ expert to keep his proprietary database confidential the Court will grant petitioners’ motion.” Order, at p. 1.

And you can find the text of Judge Holmes’ order at p. 2.


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