Opinion
26749-16W
05-21-2024
JOHN DEE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Diana L. Leyden Special Trial Judge
Pending in this case is respondent's Motion for Summary Judgment, filed March 27, 2024 (motion). The Court directed petitioner, after granting an extension of time, to file an objection or other response to respondent's motion by May 20, 2024.
On January 8, 2024, respondent filed a Notice of Filing of the Administrative Record, a Certificate as to the Genuineness of the Administrative Record, the Administrative Record, and a Privilege Log for Administrative Record. In the Privilege Log respondent identified documents in the Administrative Record that respondent determined, if disclosed, would seriously impair a civil or criminal tax investigation, citing the flush language of section 6103(h)(4). Respondent redacted those documents and asserted the privilege outlined in the flush language of section 6103(h)(4). Respondent also identified and redacted documents that respondent claimed were protected by attorney-client privilege. Respondent has not disclosed to petitioner unredacted copies of the documents for which respondent has asserted a privilege. Petitioner filed an Objection to Completeness of Record on March 12, 2024, objecting to some of the redactions respondent made asserting the above-referenced privileges, and also identifying documents that he asserted should be added to the Administrative Record.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
On April 19, 2024, the Court held a conference call with the parties. On the call the Court discussed with the parties the redactions in the Administrative Record. Petitioner requested that the redactions be cleared before he filed an objection or other response to respondent's motion. The Court asked whether respondent would object to an in camera review of the documents to which respondent asserted the privilege outlined in the flush language of section 6103(h)(4). Respondent requested 45 days to file a status report with respondent's position on whether the documents to which respondent asserted the above privilege could be disclosed for an in camera review. The Court agreed and requested that respondent file a status report with respondent's position in 45 days.
On May 13, 2024, respondent filed a Status Report and indicated that, if ordered by the Court, respondent would submit unredacted copies of the documents for which respondent asserts the section 6103(h)(4) flush language privilege to the Court for an in camera review of those documents, but respondent objected to any disclosure of the unredacted documents by the Court to petitioner or any other party and requested that unredacted information be returned to respondent after the in camera inspection is complete.
On May 17, 2024, the Court held another conference call with the parties. On the call the Court explained that, in accordance with Rule 93 and pursuant to the discussions with the parties, it would recharacterize petitioner's Objection to Completeness of Record as a Motion to Complete and Supplement the Administrative Record. The Court further explained that to rule on petitioner's motion to complete and supplement the administrative record it would direct petitioner to file a supplement to his motion, identify which documents he was moving should be filed to complete the administrative record and which documents he was moving should be filed to supplement the record and explain whether the requirements outlined in Van Bemmelen v. Commissioner, 155 T.C. 64 (2020) are met as to each document he moves should be filed. With respect to the redactions petitioner objected to due to respondent's claimed privileges, and as discussed with the parties during the conference call the Court will, on its own motion, direct respondent to submit those documents petitioner identified in his Motion to Complete and Supplement the Administrative Record to the Court, unredacted, for in camera review.
Accordingly, considering the arrangements discussed with the parties in the April 19, 2024, conference call, in respondent's May 13, 2024, Status Report, and in the May 17, 2024, conference call, it is
ORDERED that respondent's Motion for Summary Judgment, filed March 27, 2024, is held in abeyance. It is further
ORDERED that petitioner's obligation to file an objection or other response to respondent's Motion for Summary Judgment by May 20, 2024, is relieved until such time as the Court may later direct petitioner to file an objection or other response to respondent's Motion for Summary Judgment. It is further
ORDERED that petitioner's Objection to Completeness of Record filed March 12, 2024 (Index # 98), is hereby recharacterized as petitioner's Motion to Complete and Supplement the Administrative Record. It is further
ORDERED that petitioner shall, on or before August 5, 2024, file a supplement to his Motion to Complete and Supplement the Administrative Record, as discussed above. It is further
ORDERED that, on the Court's own motion, respondent shall, on or before August 5, 2024, submit to the undersigned for in camera review all documents identified in respondent's Privilege Log, filed January 8, 2024, to which petitioner objected to the privilege in his Motion to Complete and Supplement the Administrative Record. The documents are to be submitted in a double-sealed enclosure marked, "Documents Submitted Under Seal - To Be Opened by Special Trial Judge Diana L. Leyden - Attn Room 111". It is further
ORDERED that respondent shall file along with the documents so submitted a Motion to Seal the documents to the public and parties.