In Uncategorized on 05/23/2023 at 17:24

In most circles, failing to report is a severe failing. But maybe not for Judge Mark V. (“Vittorio Emanuele”) Holmes, when Dixieland Boondockery is in play. Here’s Kimberly Road Fulton 25, LLC, Kimberly Road Manager, LLC, Tax Matters Partner, Docket No. 17852-21, filed 5/23/23.

IRS wants five (count ’em, five) experts to testify without first submitting written reports. Rule 143(g) bars this, of course, but IRS claims it hasn’t retained or employed any. The Kimberlys claim there are limits to what freelance experts can testify, which Judge Holmes recognizes, and there are questions concerning the qualifications of the witnesses per FRE 701 and 702 to opine at all. FRCP §26(a)(2), though not briefed by the parties, also has a role, so Judge Holmes lets it all in, subject to objection by  the Kimberlys on the trial to exclude.

IRS wants to call at least one witness from Georgia DCH, which a source tells me is the Georgia Department of Community Health, but the whole panoply will be subject to voir dire as to technical qualifications, if any.

“The Court will exercise its discretion and postpone ruling on any of these other grounds for exclusion until and unless respondent calls for these witnesses and petitioners renew their objections and state their grounds for doing so with the greater precision that cross-examination will allow.” Order, at p. 4.

Taishoff says FRCP §26(a)(2) and Rule 143(g) may be limited to hired guns by their terms, but allowing this move by walk-ons is trial by ambush.


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