I open my sermonette today with a line characterised by one critic as “the most self-conscious theatricality since the days of Caesar Augustus,” but it fits Lakepoint Land II, LLC, Lakepoint Land Group, LLC, Tax Matters Partner Docket No. 13925-17, filed 8/22/23. This is the current Boss Hoss blockbuster brouhaha, featuring asserted backdated Boss Hossery and alleged IRS skullduggery.

I’ve been on this case for more than a year, now; see my blogpost “Boss Hoss in the Silt,” 8/18/23.

Judge Christian N. (“Speedy”) Weiler has before him all the discovery argy-bargy, and the Lakepoints are getting a lot of what they want. To what extent this will avail them is another story.

The Lakepoints want “name and title (if applicable), and provide the contact information, including phone number, email, and address, for any party including third party, with whom You {IRS] have communicated since the issuance of the FPAA, either orally or in writing, in connection with this Matter and/or received information or any Document directly or indirectly relating to or involving LakePoint’s Easement Donation or Fee Simple Donation or the determination of any Tax Liability resulting, directly or indirectly, from said donations.” Order, at pp. 2-3.

They get it.”… we agree that respondent’s objections are improper and that his reliance on the work product doctrine is misplaced. The work product doctrine protects documents, interviews, statements, memoranda, correspondence, briefs, mental impressions, and tangible things prepared by an attorney in anticipation of litigation or trial. Contrary to respondent’s assertion that petitioner’s motion is aimed at discovering respondent’s trial preparation activities, we fail to see how petitioner’s request for a ‘list of identities and contact information for witnesses contacted by [r]espondent’ is tantamount to ‘unwarranted inquiries into the files and the mental impressions of [respondent’s counsel].’” Order, at p. 3. (Citations omitted).

And now the Big Kahuna. “Interrogatory No. 8 seeks an explanation for why respondent failed to timely inform the Court or petitioner of the false statements made in the Motion for Partial Summary Judgement (MPSJ) concerning respondent’s compliance with the written supervisory approval requirements of section 6751(b)(1) and the First Brooks Declaration.” Order, at p. 4.

No soap. “We agree with respondent that to answer the question why respondent ‘failed to timely inform the Court or Petitioner of the false statements in the MPSJ and the First Brooks’ Declaration’ would necessarily disclose the discussions between and the strategies of respondent’s trial team members, which amount to mental impressions protected by the work product doctrine. Accordingly, we will not require respondent to supplement his response to Interrogatory No. 8.” Order, at p. 4.

But the Lakepoints get a palpable hit. Judge Speedy Weiler tells IRS to provide “name and title all IRS personnel, including, without limitation, all members of the Office of Chief Counsel, who became aware of any misstatement in the MPSJ or the First Brooks Declaration before Petitioner’s counsel contacted Respondent’s counsel on March 27, 2023 to schedule a meeting and provide the date on which such person became aware of any such misstatement.” Order, at p. 4.

As the Lakepoints are seeking sanctions, “(W)e will therefore direct respondent to make a forthright and comprehensive response… providing petitioner with the specific dates (or close approximation thereof). To the extent respondent asserts that the requested information does not exist or cannot be secured, he must certify that he made a reasonable search and/or request for the information and that, to the best of his knowledge, the response is complete.” Order, at p. 5.

There’s a lot more, and you discovery geeks will want the citations for your toolkits.

But I’m sad to tell the Lakepoints, and their highroller clients who are presumably paying for this, that Judge Speedy Weiler has told them Boss Hossery is a  nonstarter, whatever penalties and sanctions may befall IRS’ minions.

The whole story is in footnote 1 at page 1. “Absent stipulation to the contrary, this case is appealable to the U.S. Court of Appeals for the Eleventh Circuit, and we thus follow its precedent. See Golsen v. Commissioner, 54 T.C. 742, 756–57 (1970), aff’d, 445 F.2d 985 (10th Cir. 1971).”

See my above-cited blogpost.

Edited to add, 8/23/23: To every gambit, there is always a countergambit. A brief exchange with colleague Peter Reilly, CPA, brought to light the motion for sanctions per Rule 104(c), barring IRS from introducing any evidence of compliance at any time and in any manner with Section 6751(b), taking Kroner out of the case.