Post-Hewitt, the “very contestable reading of what it means to be perpetual” has devolved into the battle of the appraisers that Judge Holmes envisioned two years ago; see my blogpost “They Always Must Be With Us,” 5/12/20. Wherefore IRS is back to playing “win your case anywhere but on the trial,” seeking to toss petitioners’ experts, be they retained or specially employed, or merely “percipient,” that is, engaged or involved when the events giving rise to the controversy took place; what we old State courtiers call “eyewitnesses.”

Judge Christian N. (“Speedy”) Weiler isn’t having any of it in Buckelew Farm, LLC f.k.a. Big K Farms LLC, Big K LLC, Tax Matters Partner, Docket No. 14273-17, filed 11/7/22.

The Buckalews tried to wildcard in an expert’s report, and IRS tried to wildcard in two (count ’em, two) of their own, both sides claiming theirs weren’t specially retained or employed for the trial. Then IRS moves to toss all of the Buckalews’ experts, alleging Rule 143 violations.

So Kumho Tire and Daubert get a good airing, as does the reminder that “(R)ule 143(g)(1) is modeled after and contains identical language found in Federal Rule of Civil Procedure 26(a)(2)(B). Furthermore, Rule 1 notes how we are to give weight to the Federal Rules of Civil Procedure in instances where there is no applicable rule of procedure. If a party fails to properly disclose an expert witness under Federal Rule of Civil Procedure 26(a), the party may not use the witness ‘unless the failure was substantially justified or is harmless’ Fed. R. Civ. P. 37(c)(1).” Order, at p. 3.  (Footnote omitted).

“Moreover, federal courts are to acknowledge the differences between percipient witnesses who happen to be experts from those experts who, without prior knowledge of the facts giving rise to litigation, are recruited to provide expert opinion testimony.” Order, at p. 5. (Citation omitted).

The Buckalew’s wildcard expert passes muster with Judge Speedy Weiler. Another had his opinion attached to the Buckalews’ original return, so IRS’ claim they were ambushed is nonsense, as one of their wildcards produced an 800 (count ’em, 800) page rebuttal report. And the Buckalews’ other experts will either not testify, or has been called by IRS for their case in chief, and the last is the preparer of a subdivision plan for the property who is only being called to testify that he did so.

In short, IRS’ latest tactic to dodge actually trying a valuation case falls flat.

A Taishoff “Good Job,” goes to Jeffrey S. (“no phone”) Reed and the team at Kilpatrick Townsend.