And Too Far Away

When IRS tries the Luke 5:4-8 number on the current CEO of the 501(c)(3) in Ogeechee Plantation Property, LLC, Ogeechee Plantation Manager, LLC, Tax Matters Partner, Docket No. 6585-21, filed 5/27/25 (Happy Palindrome Week!), Judge Mark V. (“Vittorio Emanuele”) Holmes echoes the words of an even higher authority than United States Tax Court, and tells them to go away.

It’s a duces tecum (because current CEO wasn’t CEO when the conservation easement was signed). IRS wants only the documents and an affidavit showing chain of custody.

“The problem is that the documents requested – as part of a trial subpoena for cases set to be tried only about a month after the subpoena was served – are ‘any and all documents relating to conservation easements owned, managed, or supervised by [501(c)(3)] that reflect [any of several types of broadly defined information].’” Order, at p. 1. And IRS wants the stuff for seven (count ’em, seven) years.

“We would be hard-pressed to enforce this kind of ‘any and all’ request to a party months before trial when the easements at issue here were granted in December 2017 and December 2018. This is a fishing expedition seeking not just a few nibbles on carefully baited hooks but entire nets’ full of information. We determine it to be overbroad and burdensome on a third party and will grant the motion to quash.” Order, at p. 1. (Emphasis by the Court).

Likewise Judge Holmes will let the former CEO, who was in command at the time of the easement grant, but who now lives hundreds of miles from trial venue and must care for a small child, to testify remotely. On-the-stand testimony is what Rule 143(b) mandates, but there are exceptions. Whatever would we do without exceptions?

“We don’t doubt the importance of Ms. Q’s testimony – it is at least arguable that the description of the properties on which the easements were placed somehow changed after the time of the donation. But it’s also true that neither party is alleging that Ms. Q or her former employer did the changing. This makes her an important witness, and maybe even a background-facts witness, but not one whose testimony the Court would expect to take very long or be marked by any great deal of the tense cross-examination that makes live testimony so compelling. We think the expected duration of her testimony (based on the Court’s own experience with donee testimony in many other conservation-easement cases) is not long. Forcing her to abandon her parental responsibilities is under the circumstances a good cause and compelling.” Order, at p. 2. (Name omitted).