Opinion
23305-18
11-21-2022
RALPH M. OTTUSO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Elizabeth A. Copeland, Judge
The trial in this case was held on July 11, 2022, at the Court's Remote Special Trial Session where Washington, D.C. was listed as the place of trial. This case was then submitted on July 11, 2022, with the stipulation that the record was to be held open until July 25, 2022, in order to receive into the record evidence which was agreed upon at trial. The Court also ordered simultaneous briefs from the parties.
On July 24, 2022, the parties filed with the Court a joint Second Supplemental First Stipulation of Facts. We thereafter closed the record in this case by order dated September 23, 2022. While respondent timely filed his opening brief on September 23, 2022, petitioner did not file a brief until November 10, 2022. Such filing was beyond the 75-day period for the filing of opening briefs, see Rule 151(b); it was titled "Answering Brief for Petitioner"; and it made reference to respondent's opening brief. Petitioner's brief was therefore in the nature of a seriatim answering brief, filed by the original due date for simultaneous answering briefs. Petitioner's brief represents, among other things, that petitioner incorporated his stove/generator business, Pine Lake Stoves &Fireplaces, Inc., (previously understood to be a sole proprietorship) under New York State law on February 14, 2014.
On November 3, 2022, petitioner filed with the Court a letter requesting that the record be reopened to receive several documents that he represents are both material to the issues involved in the case and will, once considered, change the outcome. Petitioner attached those documents to his letter; they consist of New York State and federal tax forms; various receipts and contracts; a purchasing record; and an affidavit from a third party. We will be recharacterizing this letter as Petitioner's Motion to Reopen the Record.
Only in exceptional circumstances will this Court reopen the record after trial to accept new evidence. This is because such evidence can be prejudicial to the other party (here respondent) if not presented at trial. See, e.g., Jacobs v. Commissioner, T.C. Memo. 1977-1, 36 T.C.M. (CCH) 1. "[S]ince the evidence was not presented at trial it was not given under oath and the respondent had no opportunity to cross-examine petitioner with respect to it." Id. at 4. Once the record in a case has been closed, the Court will not reopen the record unless newly proposed evidence "is material to the issues involved" and "probably would change the outcome of the case." Butler v. Commissioner, 114 T.C. 276, 287 (2000) (citing Coleman v. Commissioner, T.C. Memo. 1989-248). Further, the Court will not reopen the record where the newly-proposed evidence is "merely cumulative" or duplicative of the evidence submitted at trial. Id.
We note that petitioner is representing himself in this case, and that pro se taxpayers are to be treated leniently. See Haines v. Kerner, 404 U.S. 519, 520 (1972); United States v. Marrero, 651 F.3d 453, 468 (6th Cir. 2011). We will therefore exercise our discretion to retroactively order seriatim briefing under Rule 151, thereby recharacterizing respondent's brief as a seriatim opening brief and petitioner's brief as a seriatim answering brief. Likewise, respondent will be allowed to file a seriatim reply brief.
As to petitioner's motion, before we reopen the record to potentially receive newly-produced documents, we will first give respondent an opportunity to object to the admission of some or all of the documents. If there are objections, we will likely hold a supplemental hearing regarding such objections and, at that same hearing, allow respondent to cross-examine petitioner or any of petitioner's witnesses regarding admissible proffered evidence. Such a hearing will be scheduled within ninety (90) days of receiving respondent's response and/or objections.
After due consideration, it is
ORDERED that respondent's Simultaneous Opening Brief, filed September 23, 2022, is recharacterized as respondent's Seriatim Opening Brief. It is further
ORDERED that petitioner's Simultaneous Answering Brief, filed November 10, 2022, is recharacterized as petitioner's Seriatim Answering Brief. It is further
ORDERED that respondent file a seriatim reply brief by December 16, 2022, to include (among other things) respondent's position on the implications of petitioner's alleged incorporation of his business on February 14, 2014, on petitioner's alleged individual federal income tax deficiency for tax year 2014. It is further
ORDERED that petitioner's letter, filed on November 3, 2022, is recharacterized as Petitioner's Motion to Reopen the Record. It is further
ORDERED that respondent file a response by December 16, 2022, to Petitioner's Motion to Reopen the Record indicating whether he objects and on what basis he objects to the admission of any of petitioner's newly-produced documents.