Opinion
1814-20
12-18-2023
MICHAEL W. AUBIN & KERRY A. AUBIN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
James S. Halpern Judge.
On December 15, 2023, petitioners filed a Motion in Limine (Motion) praying that the Court "exclude the Closing Agreement from evidence for the time being."
We assume that petitioners are referring to Exhibit 3-J to the Stipulation of Facts (Stipulation) entered into by the parties on February 2, 2021, and appearing in the Court's record of this case as Docket Entry No. 15. The Stipulation is executed on behalf of petitioners by their counsel, Kathryn Magan. Exhibit 3-J is described in paragraph 5 of the Stipulation as "a copy of a document titled 'U.S. Treasury Department - Internal Revenue Service: Closing Agreement as to Final Determination Covering Specific Matters' . . . [Closing Agreement] signed by petitioner Michael W. Aubin and Deborah Palacheck, Acting Assistant Deputy Commissioner, International." Paragraph 6 of the Stipulation provides that petitioner Michael W. Aubin signed the Closing Agreement on January 6, 2015.
The introductory paragraph of the Stipulation provides that, for purpose of this case, statements in the Stipulation may be accepted as facts and all exhibits may be accepted as authentic. The parties retained in the Stipulation the right to object to the admission of any such facts and exhibits on the grounds of relevancy and materiality, "but not on other grounds unless expressly reserved [in the stipulation]." Petitioners reserved no objection on any ground to Exhibit 3-J or to paragraphs 5 or 6 of the Stipulation.
The Motion asks that the Closing Agreement be excluded from evidence as inadmissible hearsay, but petitioners did not reserve a hearsay objection to the Closing Agreement in the Stipulation. They have therefore waived that objection.
Petitioners also attempt to withdraw Stipulation paragraph No. 6, that Mr. Aubin signed the Closing Agreement, alleging that claims of fraud and criminality regarding the taxpayers' signatures in another case, Diaz v. Commissioner, dkt. No. 4855-20, involving a similar closing agreement, suggest "the possibility of attempted fraud" on the Court. They suggest: "If Respondent wishes to establish that Petitioner [Mr. Aubin] signed the Closing Agreement, Respondent must produce a witness that saw him sign it."
Petitioners have not substantiated any fraud and criminality in Diaz, and any suggestion that Mr. Aubin did not sign the Closing Agreement is contradicted by petitioners' agreement in the Stipulation that their representations "may be accepted as facts." Moreover, Ms. Magan, their counsel, executed the Stipulation on February 2, 2021. She also represented the Diazes and signed the petition in their case on March 4, 2020, almost a year earlier, in which petition the Diazes questioned the validity of their signatures on a closing agreement. If Ms. Magan had any suspicions of fraud and criminality with respect to the Stipulation, no doubt she would not have executed it on petitioners' behalf. Petitioners give us no reason to relieve them of paragraph 6 of the Stipulation. See Rule 91(e), Tax Court Rules of Practice and Procedure.
We will deny the Motion. Moreover, petitioners' arguments verge on, if they do not cross the line as, being frivolous. Also, this is at least the third time that petitioners have moved to exclude a document to which they have already stipulated, without giving any reason why justice requires relieving them of their stipulation. See docket entries Nos. 70, 72, and 97. We caution petitioners that taking frivolous positions may result in the imposition of sanctions. Internal Revenue Code Section 6673(a)(1) provides, "Whenever it appears to the Tax Court that . . . the taxpayer's position in such proceeding is frivolous or groundless . . . the Tax Court, in its decision, may require the taxpayer to pay to the United States a penalty not in excess of $25,000."
On the premises stated, it is
ORDERED that the Motion is denied.