In Uncategorized on 11/15/2022 at 18:58

Judge Albert G. (“Scholar Al”) Lauber restricts the testimony of two proffered experts in Oconee Landing Property, LLC, Oconee Landing Investors, LLC, Tax Matters Partner, Docket No. 11814-19, filed 11/15/22. IRS, of course, wants both tossed utterly; but Judge Scholar Al won’t eviscerate the Oconees case just yet.

One expert both sides agree is an expert, but whose report IRS claims refers to another Tax Court case (and thus is irrelevant), and is argumentative. Judge Scholar Al deals with that.

“We agree that Mr. F’s discussion of another pending Tax Court case, if not improper, is gratuitous and unnecessary to the analysis he seeks to present. See Fed. R. Evid. 401 and 402 (stating that evidence is irrelevant, and thereby inadmissible, if the evidence fails to have any tendency to make a relevant fact more or less probable). We also agree that a few sentences in his report are argumentative and essentially embrace petitioner’s litigating position. On balance, however, we find that his discussion of legal matters is relevant to his valuation analysis and does not invade the province of the Court. We will therefore deny respondent’s Motion, but we will ignore all of Mr. F’s references to another pending Tax Court case and those portions of his report that we regard as improperly argumentative.” Order, at p. 4 (Name and citation omitted).

The next expert is a real estate consultant, who did a bunch market research (hi, Judge Holmes) of the Oconees’ home turf, to show what a high-class, high-priced community might have been founded upon the Oconees’ conservation-easement-encumbered boondocks. Trouble is, a lot of this research was done post-year-at-issue, and some sources were “confidential and unidentified” (Order, at p. 2).

The Oconees object that this expert was greenlighted by none other than Judge Christian N. (“Speedy”) Weiler, just a week ago; see my blogpost “Percipient and Admissible,” 11/7/22. But Judge Scholar Al is not giving the expert, Ms. Belinda Sward, free rein to opine in extenso. He confines her within a holding pen, the outside limit of which is end-of-year-at-issue. Anything later is auf’d.

If the parties can agree what part of Ms. Sward’s report can come in, Judge Scholar Al is down with that. If they cannot agree, he will rule at trial.

Taishoff says the parties should remember, when Judge Scholar Al puts a witness in a holding pen, the pen is mightier than the Sward. (Sorry, guys, the devil made me do it).


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