“…the law is a ass — a idiot.” Thus spake Charles Dickens, in the voice of Mr. Bumble in Oliver Twist (1838). Current expert opinion is that the phrase is certainly not original with Dickens, and probably dates earlier than 1620, in a work much less famous.

Howbeit, we find again that, when Tax Court discovery takes the field, the relevance objection to a demand for documents is irrelevant. Counterintuitive (to be polite), but there it is. See Green Valley Investors, LLC,, Bobby A. Branch, Tax Matters Partner, et. al. , Docket No. 17319-19, filed 10/23/23.

Bobby’s trusty attorneys have been adept at playing the “win your case at discovery” gambit, and here they persuade Judge Christian N. (“Speedy”) Weiler, not conspicuously a fan of such tactics, to give them one out of 34 (count ’em, 34) challenged IRS discovery responses.

Bobby wants copies of all drafts of the FPAAs “issued to the Partnership.” Order, at p. 3. I’m not sure who the “Partnership” is, as we have three (count ’em, three) LLCs consolidated here, and no showing that any or all of the three were partners one with another.

Whatever, IRS claims Greenberg’s Express says the past isn’t even prologue; FPAAs are TEFRA SNODs, so trial is de novo.

But Judge Speedy Weiler lets it in.

“In Request 25, petitioner seeks all drafts of the FPAAs issued to the Partnership. Respondent objected to the Request in his response on the grounds of relevancy, citing Greenberg [sic] Express. However, the Court finds respondent’s relevancy objection to this Request to improper [sic; I think you meant “to be improper”, Judge]. Accordingly, the Court overrules respondent’s objection and will order respondent to provide a supplemental response to this Request.” Order, at p.3.

I wish we had more enlightenment. Is it because this “response appears reasonably calculated to lead to discovery of admissible evidence,” per Rule 70(b)(2)? If so, is that admissible evidence related to the Section 6751(b) Boss Hoss sign-off?

I suggest this because of a sentence at Order, p. 1. “The Interrogatories and Requests primarily relate to respondent’s burden of production and the IRS’s compliance with section 6751(b).” (Footnote omitted, because it’s missing from the text of the Order as it appears on the Tax Court website). At Order, p. 2,  IRS says they can’t find the Form 5701 Notice of Proposed Adjustment they issued, so can’t establish the magic first time penalties asserted.

Now Bobby sought trial in Birmingham, AL, which is 11 Cir. And all y’all will recall that 11 Cir followed 9 Cir, holding in Kroner v. Com’r, No. 20-13902, filed 9/13/22 that Boss-Hoss-anytime-before-assessment is the rule. And here the petition stayed assessment per Section 6213(a).

So IRS could end this kerfuffle by Boss Hossing the whole shebang right now.

And that would definitely make relevance irrelevant.