Opinion
12930-18
09-08-2021
Gina C. Lewis, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER
Cary Douglas Pugh Judge
Currently pending before the Court is petitioner's Motion for Reasonable Litigation or Administrative Costs (motion for costs), filed February 22, 2021, pursuant to section 7430. On April 23, 2021, respondent filed a response to petitioner's motion for costs. On August 9, 2021, petitioner filed a Motion to Compel Production of Documents (motion to compel) and a Motion for Leave to File Reply to Response to Motion for Reasonable Litigation or Administrative Costs. We held a conference call with the parties on August 18, 2021. On September 1, 2021, respondent filed a response to petitioner's motion to compel.
Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Rule 70(b) provides that "[t]he information or response sought through discovery may concern any matter not privileged and which is relevant to the subject matter involved in the pending case." Respondent, as the party opposing the production of information, has the burden of establishing that the documents sought by petitioner sought are irrelevant or that they are otherwise not discoverable. See Bernardo v. Commissioner, 104 T.C. 677, 682 (1995).
Section 7453 provides that, with exceptions not relevant here, "the proceedings of the Tax Court and its divisions shall be conducted in accordance with * * * the Federal Rules of Evidence." See also Rule 143(a) (same). Evidence is relevant if (1) it has any tendency to make a fact more or less probable than it would be without the evidence; and (2) the fact is of consequence in determining the action. Fed.R.Evid. 401.
In her motion to compel, petitioner seeks "[a]ll time records of each and every Chief Counsel and IRS employee who have worked on this case since the Petition was filed" arguing that comparing the number of hours that respondent spent on this proceeding will help prove that the number of hours petitioner's counsel spent on the case is reasonable. We are persuaded by respondent's response that the time records sought by petitioner fall outside of the scope of discovery under Rule 70(b).
Upon due consideration, therefore, it is
ORDERED that petitioner's Motion to Compel Production of Documents, filed August 9, 2021, is denied. It is further
ORDERED that petitioner's Motion for Leave to File Reply to Response to Motion for Reasonable Litigation or Administrative Costs, filed August 9, 2021, is granted and petitioner shall file such reply on or before October 2, 2021.