Opinion
17832-22
08-03-2023
DUSTIN ANTHONY NEWELL & MELISSA HOGG NEWELL, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Peter J. Panuthos Special Trial Judge.
This matter is before the Court on respondent's Motion for Protective Order, pursuant to Tax Court Rule 103(a) that respondent at this time need not respond to Request for Production of Documents served upon him by petitioners in this case.
The sequence of events in this case is highlighted as follows: The petition was filed to commence this case on August 13, 2022. On October 8, 2022, petitioners filed a Motion for Judgment on the Pleadings. The Court denied petitioners' motion without prejudice on April 24, 2023.
On May 2, 2023, petitioners emailed respondent requesting a pre-trial conference. On May 11, 2023, petitioners emailed respondent attaching a document titled "Request for Production of Documents", requesting a response from respondent by June 12, 2023. The parties had telephone conferences on June 7, 2023, June 12, 2023, and June 13, 2023. On June 12, 2023, respondent provided petitioners' counsel with the 2019 Account Transcript, 2019 Wage and Income Transcripts, and 2019 Tax Return Transcript.
On June 20, 2023, respondent filed a Motion for Protective Order Pursuant to Rule 103 asserting that petitioners failed to comply with Rule 70(a)(1) in that they did not seek informal consultation or communication prior to initiating formal discovery. On June 26, 2023, the Court ordered petitioners to file an objection to respondent's motion by July 17, 2023. Petitioners filed a response to respondent's motion on June 28, 2023. Subsequently on July 7, 2023, respondent filed a Supplement to the Motion for a Protective Order.
Before undertaking formal discovery, a party must first attempt to attain the objectives of discovery through informal communication. Rule 70(a)(1); Branerton Corp. v. Commissioner, 61 T.C. 691, 692 (1974).
Petitioners assert that in the email forwarding the request for documents, they indicated that the request was intended as informal. In petitioners' response to the Motion for a Protective Order, they indicate that despite the form of the May 11, 2023, request for documents, the request should be considered as an informal request. Respondent indicates in his motion that subsequent to the request for documents but prior to the filing of the Motion for a Protective Order, the parties did conduct three or more informal conferences.
The court is satisfied that the May 11, 2023, Request for Production of Documents may be considered an informal request for discovery. Given the conclusions above, it appears that respondent's motion is premature. Accordingly, and upon due consideration, it is
ORDERED that respondent's Motion for Protective Order, as supplemented, filed June 20, 2023, is denied, without prejudice. It is further
ORDERED that the parties shall continue to communicate with one another and attempt to resolve or narrow issues.