Opinion
11832-20
05-19-2023
AVENTIS, INC. AND SUBSIDIARIES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
Pursuant to our order of August 20, 2021 (Doc. 14), the parties have filed periodic joint status reports. The most recent joint report (Doc. 22) includes a request by petitioner and a suggestion by respondent:
... Petitioner believes that the Debt-Equity Issue will, after an appropriate stipulation of facts is agreed upon, be ripe for summary judgment and would dispose of the case in its entirety.... Petitioner respectfully requests that the Court allow Petitioner to file summary judgment on the Debt-Equity Issue within the next three months. That filing, and Respondent's Opposition, should aid the Court in determining whether any additional discovery is necessary in this case....
The remaining issues are factual in nature. Therefore, Respondent suggests that the Court issue an order requiring the parties to include in their next status report, a pretrial schedule that includes a proposed trial date and all relevant pretrial activities, including the last date to serve informal and formal discovery and for filing any motions to compel discovery.
That is, the parties disagree about whether the case can be resolved on undisputed facts or instead requires a trial. Although a debt-vs.-equity issue is often (as the Commissioner says) "factual in nature", we cannot, on the record now before us, definitively resolve that disagreement. Even where an issue can be said to be "inherently factual", a case involving that issue must be decided by "the application of law to the actual facts of the particular case", and summary judgment may not be out of the question. Shanley v. Commissioner, T.C. Memo. 2009-17, 97 T.C.M. (CCH) 1062. The mechanism in the Tax Court rules for presenting to the Court the question whether a case requires a trial or can be resolved on undisputed facts is, of course, a motion for summary judgment under Rule 121. We do not encourage such a motion, but we do not forbid it. Under Rule 121(b)(1) such a motion may be made "at any time" (with limitations not evidently applicable here), so petitioner's anticipated request to be allowed to file such a motion is not necessary. Respondent's suggestion for setting a pretrial schedule is not unreasonable; but without any order, either or both of the parties is free to propose such a schedule.
Rule 50(a) provides: "An application to the Court for an order shall be by motion in writing, which shall state with particularity the grounds therefor and shall set forth the relief or order sought." (Emphasis added.) Each party seems to ask for an order, but neither has filed a motion. It is therefore
ORDERED that our previous order (Doc. 14) remains in effect. Any party desiring an alteration of that order should file a motion in compliance with Rule 50(a).