Opinion
29477-21
07-15-2024
EVEREST GRANITE, LLC, EVEREST PLAINS HOLDINGS, LLC, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Cary Douglas Pugh, Judge
This case tentatively is set for a special trial session in New Orleans, Louisiana, beginning May 5, 2025. We held a conference call with the parties on July 10, 2024, to discuss five pending motions:
1. Petitioner's Motion to Compel Discovery, filed July 6, 2022;
2. Petitioner's Motion to Review the Sufficiency of Answers or Objections to Request for Admissions, filed July 6, 2022;
3. Respondent's Motion to Compel Production of Documents, filed March 19, 2024. Petitioner filed a Response on April 29, 2024;
4. Respondent's Motion to Compel Production of Documents, filed April 11, 2024. Petitioner filed a Response on April 26, 2024; and
5. Respondent's Motion to Modify Responses to Petitioner's Second Request for Admissions Pursuant to Rule 90(f), filed April 18, 2024. Petitioner filed an Objection on April 29, 2024.
Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure.
The background behind these Motions has been covered in our Order issued April 3, 2024, the transcript of the May 7, 2024, hearing we held in New Orleans, Louisiana, and the parties' respective filings. Upon review of the parties' filings, the only Motion that requires further context is respondent's Rule 90(f) Motion.
Petitioner filed its Second Request for Admissions on February 7, 2023. Respondent did not file a response within thirty days as required by Rule 90. Consequently, under Rule 90(c), the requests in the Second Request for Admissions were deemed admitted. In July 2023, respondent filed two Motions asking the Court to allow him to withdraw the deemed admitted admissions and to file his response to the Second Request for Admissions late (he lodged his response with the Court). In our Order issued April 3, 2024, we granted both Motions and filed the lodged response.
Respondent seeks to modify 16 of the admissions made in that response, arguing that modification is appropriate because of errors discovered after he filed the response. To modify these admissions, he must show that the modification will promote "the presentation of the merits of the case." Rule 90(f). We have interpreted that requirement to mean that he must come forth with facts that tend to refute the admission. See New v. Commissioner, 92 T.C. 1146, 1149 (1989). Petitioner, as the party who obtained the admission, must "satisfy the Court that the . . . modification will prejudice [it] in prosecuting the case or defending on the merits." Rule 90(f).
We are satisfied that allowing respondent to modify those 16 admissions will promote the presentation of the merits of the case.
For cause and for reasons more fully set forth in the record, it is
ORDERED that petitioner's Motion to Compel Discovery, filed July 6, 2022, is denied without prejudice. It is further
ORDERED that petitioner's Motion to Review the Sufficiency of Answers or Objections to Request for Admissions, filed July 6, 2022, is denied without prejudice. It is further
ORDERED that respondent's Motion to Compel Production of Documents, filed March 19, 2024, is denied as moot. It is further
ORDERED that respondent's Motion to Compel Production of Documents, filed April 11, 2024, is denied as moot. It is further
ORDERED that respondent's Motion to Modify Responses to Petitioner's Second Request for Admissions Pursuant to Rule 90(f), filed April 18, 2024, is granted. Respondent's responses to petitioner's Second Request for Admissions Nos. 2, 3, 4, 27, 28, 31, 51, 52, 53, 61, 62, 63, 65, 66, 71, and 72, are modified as stated in paragraph 24 of respondent's Motion.