Attorney-at-Law

RULE 90(c)

In Uncategorized on 05/24/2022 at 15:15

Time for a Change

A reminder that tomorrow is the deadline for comments to Ch J Maurice B (“Mighty Mo”) Foley’s proposed amendments to the Tax Court’s Rules of Practice and Procedure. So get those incisive and insightful thoughts down in electrons, and get them to Ch Clk Servoss by 4:00 p.m., local time in the Stateless City, tomorrow.

Today STJ Eunkyong (“Sidewalks of N’Yawk”) Choi has an essay on a why Rule 90(c ) needs amending, so that it has some teeth and stops being a gameplayer’s delight.

Y’all can read for yourselves STJ Eunkyong’s exegesis of the Rule’s current verbiage, but at close of play, all she can do is punt, after three (count ’em, three) years of artistic stalling by Lony Tap Gatwas, Docket No. 11575-17, filed 5/24/22.

Note I’m not faulting Lony’s trusty attorney, James R. Monroe, Esq.,, whom I’ve often praised in the past. See, e.g., my blogpost “‘When You’re Down and Out’ – Part Deux,” 6/28/16. If there’s a valid argument you can use to get your client off the hook, you must use it.

Here’s STJ Eunkyong’s take on her options, and IRS’.

“Rule 90(c) requires specificity as to a denial of a matter only if such matter is denied in part. The Rule does not prohibit a party from wholly denying a matter without specifying a reason for the denial. See Rule 90(c). A party may wholly deny a matter if the party believes that the matter presents a genuine issue of trial. See Id. However, such an outright denial is subject to Rule 90(g), which provides that if a party unjustifiably fails to admit the truth of a matter as requested, the party requesting the admission may apply to the Court for an Order imposing such sanction on the other party or the other party’s counsel as the Court may find appropriate. Id.; see also Rule 90(g).

“The only relief this Court may grant respondent is (1) deeming admitted the matters asserted in respondent’s First Request for Admissions, (2) ordering petitioner to serve an amended response to respondent’s First Request for Admissions, or (3)  making a final disposition of respondent’s motion at a later, more appropriate time.  Rule 90(e). Because petitioner’s Response to First Request for Admissions was timely,  and because Rule 90(c) does not prohibit a party from wholly denying a matter asserted in a request for admissions, we do not find petitioner’s responses insufficient.” Order, at p. 4.

Of course, IRS’ counsel has an out.

“However, based on the record before us, we do find that respondent may apply to the Court for an order pursuant to Rule 90(g).” Order, at p. 5.

But in the meantime, nothing happens.

Of course, since Lony got two years of the three aforesaid by asking the Court to wait until he got out of jail, it will be interesting to see if there are any preclusive effects that shoot down his denials in the judgment that sent him there.

And I must recommend reading IRS’ requested admissions; Lony is quite inventive.

Howbeit, Rule 90(c) needs overhauling. If the requested admissions are baseless, let the Court strike them. If the responses are unresponsive, let the petitioner (or respondent) amend, or be sanctioned.

But endless punting accomplishes nothing but provide fresh CLE fodder: Stall Your Case At Discovery.

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