“Your witness.” We’ve heard those words, or uttered them our own selves, in either case often with a mere soupçon of a smirk, after what an adversary or we thought was an incisive direct or devastating cross. But I’ll wager none of us ever heard the reply Judge Mark V. (“Vittorio Emanuele”) Holmes imputes to IRS in Ardan Holdings, LLC, Ardan Investors, LLC, Tax Matters Partner, Docket No. 17483-21, filed 2/26/24, although the Order is dated 2/23/24.

When we left the battling litigants just shy of The Midnight Hour Friday night 2/23/24, I was awaiting Judge Holmes’ sort-out of IRS’ red-hot last minute attempt to wild-card in unnamed individual witnesses from eleven (count ’em, eleven) different outfits, after the scheduling order cutoff for listing trial witnesses.

If you spent the week-end as sober as I did, you’ll remember that Judge Holmes was quoted in my blogpost “Select Or Settle,” 2/23/24, as saying he would deal with this. Naturally, as trial was supposed to start today, I asked “when?”

Never doubt Judge Holmes. He must have burned enough midnight oil significantly to increase his personal carbon footprint. One contestant was easy enough.

“…we find good cause for one of respondent’s newly-discovered witnesses—Walter Allen McCannon—whose former company, McCannon Granite Company, is one of the entities disclosed in his pretrial memo. Insofar as Mr. McCannon is respondent’s sole witness for the organization identified in his pretrial memo as McCannon Granite Company, we’ll easily deny petitioner’s motion to exclude.” Order, at p. 2.

Now of course there’s concern with eve-of-trial blind-side wild-cards. “We recognize petitioner’s concerns about the ability to prepare and cross-examine a witness that hasn’t been properly identified before trial. That could be cause to grant the remainder of petitioner’s motion.” Order, at p. 2.

Except.

“Petitioner, in its pretrial memo, names nine of the remaining 10 organizational witnesses as witnesses of its own. These include all of the 11 organizational witnesses that petitioner is trying to preclude from testifying except for the Mine Safety and Health Association.” Order, at pp. 2-3. (Footnotes omitted).

These outfits aren’t rebuttal witnesses, as the Ardans name their rebutters in their pre-trial memo, and these outfits ain’t them. Rule 30(b)(6) lets a litigant subpoena an organization, and let the organization decide whom to send to testify.

IRS would only be sandbagging the Ardans if they knew whom the outfits were going to be sending to testify, and no one claims IRS does know.

And of course depositions are the exception, not the rule, in pore l’il ol’ Tax Court.

I couldn’t find today’s trial session on the Tax Court website. I wonder if this case actually went to trial.

BREAKING NEWS: I received confirmation at 8:44 a.m., 2/27/24, from Judge Holmes’ chambers that trial began yesterday, 2/26/24, in Columbia, SC. La partie continue.