The latest IRS tactic in Malibu Valley Land, LLC, Spectrum Development, Inc., Tax Matters Partner, Docket No. 20442-19, filed 3/17/25 draws a rebuke and a lesson from Judge Travis A. (“Tag”) Greaves. Judge Tag Greaves brushed aside a bunch exclusionary-preclusionary motions on a couple days ago (hi, Judge Holmes); see my blogpost “Doowop,” 3/11/25.*

Now IRS’ attempt to quash a Malibu subpoena ad testificandum as an attempt to get around the discovery scheduling order fails. Judge Tag Graves rebuffed the Malibus when they tried a subpoena duces tecum on the same nonparty, who had furnished documents upon which IRS’ expert relied. But as said nonparty isn’t bringing anything, that’s no barrier.

IRS is trying to quash a subpoena on a nonparty. Moreover, the nonparty doesn’t object to testifying. Tax Court Rules don’t cover whether a party or third-person can move to quash a nonparty subpoena. So Judge Tag Greaves goes to the FRCP, and FRCP 45(d)(3) sets out only two (count ’em, two) bases for such motion, and IRS flunks both.

“Respondent does not represent Mr. C nor is Mr. C a party to this case. Thus, respondent only has standing to quash the subpoena if he can reasonably assert privilege over the information sought by the subpoena or he has a personal right in such information. Respondent did not claim a privilege nor a personal right to the information sought by the subpoena in his motion. Therefore, it appears that respondent lacks standing to quash the subpoena issued to Mr. C.” Order, at p. 2. (Name omitted).

Even if IRS had standing, IRS didn’t raise burden to Mr. C., or relevance of his testimony.

* https://taishofflaw.com/2025/03/11/doowop/