Opinion
11486-19 11637-19 11644-19 11645-19 11646-19 12015-19.
07-13-2023
KENNETH J. LILL, JR., ET AL., Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Mark V. Holmes Judge
These cases were on the Court's June 12, 2023 trial calendar. They all arise from respondent's challenge to a microcaptive-insurance arrangement created for a C corporation named Industrial Furnace Company by Retained Risk Managers in Arizona using Nevisian law. The Court has a very large numbers - more than 300 at last count - of microcaptive-insurance cases before it. All this makes it reasonable to get these cases on a pretrial-order track.
The Court ordered the parties to file a joint status report proposing a pretrial order, which they have done. It is therefore
ORDERED that the following schedule shall govern the remaining preparation of this case for trial:
Event
Proposed Date
1
Deadline for serving formal discovery, including interrogatories, requests for production of documents, and requests for admissions.
September 22, 2023
2
Deadline for serving notices of deposition with respect to any non-expert witnesses.
September 22, 2023
3
Deadline to file any motions to compel discovery, to review the sufficiency of the answers or objections to requests for admissions, for sanctions regarding responses to discovery and requests for admissions, and motions to compel depositions of non-expert witnesses.
October 27, 2023
4
Deadline for filing all motions for summary judgment and any and all other dispositive motions.
October 27, 2023
5
Deadline for filing first stipulation of facts with the Court along with all referenced exhibits. The filing of this first stipulation of facts does not preclude the parties from submitting to the Court additional stipulations of facts not inconsistent with the first stipulation of facts.
November 17, 2023
6
Deadline to file any motions to compel stipulation pursuant to Tax Court Rule 91(f).
December 1, 2023
7
Deadline to file any oppositions to any motions to compel stipulation pursuant to Tax Court Rule 91(f).
December 8, 2023
8
Deadline for exchange and lodging with the Court of expert witness reports. An expert witness for whom a report is not exchanged under this paragraph will not be permitted to testify without approval of the Court before trial.
December 8, 2023
9
Exchange expert workpapers relating to expert reports, except those protected from discovery by Tax Court Rule 70(c)(3) and (4).
December 8, 2023
10
Identify in writing and exchange (if not previously exchanged) any documents and written material anticipated to be offered as evidence that have not been stipulated to by the parties (except documents and written materials intended to be used solely for impeachment purposes). Any documents or written materials not so identified and exchanged will not be received into evidence unless otherwise agreed to by the parties or allowed by the Court upon sufficient showing of good case.
January 2, 2024
11
Deadline for filing with the Court pretrial memoranda. The pretrial memoranda shall set forth the issues to be tried, along with a summary of relevant facts and applicable law with respect thereto. The pretrial memoranda shall identify any evidentiary issues expected to arise at trial, as well as any other significant issue on which a ruling will be required by the Court. The pretrial memoranda also shall identify all witnesses expected to testify at trial, including expert witnesses, and shall include brief summaries of the anticipated testimony of those non-expert witnesses. Witnesses who are not so identified will not be permitted to testify at trial unless otherwise agreed to by the parties or allowed by the Court upon sufficient showing of good cause although the parties may reserve the right to call witnesses listed by the other party, or for the purpose of rebuttal or impeachment, or to testify to documents or evidence obtained after the date of the pretrial memoranda.
January 2, 2024
12
Deadline for exchange and lodging with the Court of expert witness rebuttal reports. A rebuttal expert witness for whom a report is not exchanged under this paragraph will not be permitted to testify without approval of the Court before trial.
January 5, 2024
13
Exchange final exhibits lists (excluding trial demonstratives and documents to be used solely for impeachment).
January 8, 2024
14
Deadline to file any motions in limine.
January 12, 2024
15
Deadline to file objections to any motions in limine.
January 16, 2024
16
TRIAL READY
to be determined
It is also
ORDERED that the parties are required to serve, file, exchange, or submit a document on a particular day, they shall do so by delivering the document to the opposing party on that day by facsimile or e-mail between the parties. If documents are to be exchanged via e-mail, the transmitting party shall contact the receiving party within 24 hours to ensure the e-mail was received by the receiving party if notification of receipt is not given sooner by the receiving party. If the documents are to be exchanged via facsimile, a fax transmittal record generated by the transmitting party's fax system and retained by the transmitting party will serve as evidence of timely transmittal. In the event of an issue by the receiving party with accessing an e-mail or facsimile transmission, upon notification by the receiving party of such issue the transmitting party will immediately re-transmit the documents. With respect to documents that must be electronically filed or lodged with the Court, the Tax Court's Rules of Practice and Procedure and the Court's electronic filing guidelines control the appropriate method for filing or lodging such documents and serving them on the opposing party. Documents electronically filed or lodged with the Court and electronically served on the opposing party through the Court's electronic filing system (i.e., DAWSON), need not be transmitted to the opposing party via facsimile or email.
The parties should also be aware that the Court has not yet confirmed the availability of a courtroom for trial of these cases. The Court is still aiming for January 22, 2024. There won't be a trial before then, but it is possible that trial will have to be sometime later in 2024. The Court will contact the parties as soon as it gets new information to discuss alternate dates and to coordinate changes to the dates in this order if that becomes necessary.