As a journalist, I’m always searching for some new gimmick wherewith to snag the reader’s birdwinged attention. When they come, and often they are few, the journalist must snatch them out of the air. Today I’ve got a new one, the Rule 74(c)(3) subpoena to IRS personnel.

I was talking about this a couple days ago (hi, Judge Holmes) in my blogpost “Speak Low,” 10/16/22. You’ll see Judge Albert G (“Scholar Al”) Lauber gave the brushoff to a colleague and his team.

Judge Christian N. (“Speedy”) Weiler has a similar instance in Lakepoint Land II, LLC, Lakepoint Land Group, LLC, Tax Matters Partner, Docket No. 13925-17, filed 10/17/22.  This time, though, the Lakepointers don’t want to use good faith reliance to sidestep chops, they want to unhorse IRS altogether via Section 6751(b).

IRS wants partial summary J that the Section 6751(b) Boss Hoss hoofprint was duly applied before ever a word of chops was breathed to the Lakepointers, and attach to said motion the Declaration of a Group Manager (presumably the Boss Hoss wrangler here).

The Lakepointers’ trusty attorneys move to depose nonconsensually said Group Manager and immediate subordinate. “According to petitioner’s motions, the actions of Ms. [Manager] and Ms. [subordinate] are at the heart of respondent’s Motion for Partial Summary Judgment; and accordingly nonconsensual depositions of Ms. [Manager] and Ms. [subordinate] are warranted in this case.” Order, at p.1. (Names omitted).

“Respondent opposes petitioner’s motions.” Order, at p 1. Surprise, surprise.

Might there be a question of fact as to who did what, if at all, and when, if ever. If so, does Greenberg’s Express apply? Is the past truly prologue? Can the Declaration of the Group Manager foreclose cross-examination?

Yes, the Manager and subordinate are both nonparties; only the Com’r is a party. But does not IRS put the testimony of the Manager at issue by providing the Declaration? Of course, the Lakepointers must show more than just a hunch that the IRS’ people were offside. But we shall have to await the outcome.

Meantime, while I’m a great fan of summary J, is it always wise to open a door better left closed for the trial?