Opinion
14941-18
09-22-2023
CRAIG K. POTTS & KRISTEN H. POTTS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Cary Douglas Pugh Judge
This case is calendared for trial at the Court's November 6, 2023, Phoenix, Arizona, Special Trial Session. On September 18, 2023, respondent filed a Motion for Order to Show Cause Why Proposed Facts and Evidence Should Not be Accepted as Established Pursuant to Rule 91(f) Regarding the Second Supplemental Stipulation of Facts. Attached as "Exhibit A" to that motion was a copy of the proposed Second Supplemental Stipulation of Facts.
On September 19, 2023, respondent late-filed a Motion for Order to Show Cause Why Proposed Facts and Evidence Should Not be Accepted as Established Pursuant to Rule 91(f) Regarding the Third Supplemental Stipulation of Facts. On that same date, respondent filed a Motion for Leave to File Out of Time Motion for Order to Show Cause Why Proposed Facts and Evidence Should Not be Accepted as Established Pursuant to Rule 91(f) Regarding the Third Supplemental Stipulation of Facts, and lodged a Motion for Order to Show Cause Why Proposed Facts and Evidence Should Not be Accepted as Established Pursuant to Rule 91(f) Regarding the Third Supplemental Stipulation of Facts.
Both the motion filed at docket entry no. 111, and the motion lodged at docket entry no. 113 are identical. And they both have the same flaw: neither attached the proposed Third Supplemental Stipulation of Facts as an exhibit. The motion was late which respondent recognized by filing a motion for leave. Rather than strike the late-filed motion and grant the motion for leave and then have the attached motion filed, we will deny the motion for leave and accept the late-filed motion which has the same effect. Consequently, we will grant respondent's late-filed motion, and direct respondent to file a supplement that attaches thereto a copy of the proposed Third Supplemental Stipulation of Facts and order petitioner to respond to that proposed Third Supplemental Stipulation of Facts, as supplemented.
Upon due consideration and for cause, it is hereby
ORDERED that respondent's Motion for Order to Show Cause Why Proposed Facts and Evidence Should Not be Accepted as Established Pursuant to Rule 91(f) Regarding the Second Supplemental Stipulation of Facts, filed September 18, 2023, is granted. It is further
ORDERED that respondent's Motion for Order to Show Cause Why Proposed Facts and Evidence Should Not be Accepted as Established Pursuant to Rule 91(f) Regarding the Third Supplemental Stipulation of Facts, filed September 19, 2023, is granted. It is further
ORDERED that, on or before September 26, 2023, respondent shall file a supplement to his Rule 91(f) motion regarding the Third Supplemental Stipulation of Facts, attaching thereto a copy of a proposed Third Supplemental Stipulation of Facts. It is further
ORDERED that respondent's Motion for Leave, filed September 19, 2023, is denied. It is further
ORDERED that petitioners shall, on or before October 20, 2023, file a response in compliance with the provisions of Rule 91(f)(2), with proof of service of a copy thereof on respondent, showing why the matters set forth in respondent's motions for order to show cause should not be deemed admitted for purposes of the pending cases. If no response is filed with the Court within the period specified above with respect to any matter or portion thereof, or if the response is evasive or not fairly directed to the proposed stipulation or portion thereof, such matter or portion thereof shall be deemed stipulated for purposes of the pending cases, and an order entered accordingly, pursuant to Rule 91(f)(3).