In Uncategorized on 09/20/2022 at 09:51

Again the Rodgers and Hart classic comes to mind as I peruse Judge Albert G (“Scholar Al”) Lauber’s order in  Oconee Landing Property, LLC, Oconee Landing Investors, LLC,  Tax Matters Partner, Docket No. 11814-19, filed 9/20/22.

Judge Scholar Al reviews two (count ’em, two) branches of the hearsay objection, therein, the business record custodian declaration, and the opposing party statement exceptions (what we used to call “admissions against interest”; but I’m showing my age).

Indeed, I (and doubtless all practitioners) could write a book about hearsay and its hydra-like branches. Judge Scholar Al’s book, if he wrote one, would be a classic.

In any case, I direct the attention of candidates for the next Tax Court Admissions Examination to Judge Scholar Al’s order today.

First, the custodian’s declaration.

“Respondent attached to his Motion in Limine the declaration of Christopher T. Graham, Records Custodian of PCLG. Mr. Graham certifies, under penalties of perjury, that: (1) the four documents were prepared at or near the time of the occurrence of the matters set forth therein; (2) the records were kept in the course of PCLG’s regularly conducted business activity; and (3) the records were made by PCLG as part of its regular business practice.

“Mr. Graham’s declaration meets the requirements of FRE 803(6)(A)-(C). As a ‘certification of the custodian,’ Mr. Graham’s declaration complies with FRE 902(11). See FRE 803(6)(D). And petitioner has offered no specific reasons why the source of the documents or their method or circumstances of preparation are untrustworthy. See FRE 803(6)(E). Because the four letters meet the relevant criteria, they qualify for the business records exception. See FRE 803(6).” Order, at p. 2.

Second, statements offered against an opposing party if the statement was made by the party in their individual capacity. As the Oconees are a TEFRA leftover, Judge Scholar Al has to do a deepdive into the identity of each individual to ascertain that each is a party because a partner, or one whose individual tax picture changes because of gain or loss from the partnership. See Order, footnote 2 at p. 3, detailing how TEFRA roped in indirect partners.

An engagement letter goes in as a contract, an independent act with legal consequences.

Relevance gets a mention, but FRE 401 casts so wide a net that Judge Scholar Al finds it easy to let stuff in.


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