Opinion
13967-22
11-01-2023
MARC FORSCHINO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
Now before us is the Commissioner's motion (Doc. 79) to amend our order to show cause (Doc. 78). The "amendment is sought to clarify whether the pre-marked Exhibits 1-J through 52 [with exceptions] . . . are subject to the order to show cause." We will grant the motion.
The Commissioner filed a motion (Doc. 77) for an order to show cause under Rule 91(f)(1), concerning a proposed "Stipulation of Facts" attached to the motion (as "Exhibit A" thereto). The proposed stipulation contains 79 numbered paragraphs (though the motion indicates that it is not intended to apply to paragraphs 13, 43, 55, 57, 60, 63, 65, 72, and 75).
The preamble to the proposed stipulation refers to "pre-marked" exhibits and makes various assertions about the authenticity of, the admissibility of, and reservation of objections to the exhibits. The preamble states: "Attached hereto [at pages 16-21] and incorporated herein by reference is a list of all pre-marked exhibits", which list identifies exhibits by numbers (1-J through 52) and by "Description[s]". (However, the motion indicates that it is not intended to apply to Exhibits 5-J, 6-J, 7-J, 38-J, 39-J, and 51-J.)
Although the proposed stipulation thus refers (in the preamble) to a list of exhibits, and although the list is attached, the referenced exhibits themselves are not in fact attached to the proposed stipulation. Cf. Rule 91(b) ("Documents or other papers that are the subject of stipulation in any respect and that the parties intend to place before the Court must be annexed to or filed with the stipulation"); Rule 91(f)(1)(B) ("The motion [for an order to show cause] must . . . annex thereto or make available to the Court and the other parties each document or other paper as to which the moving party desires a stipulation"). We will instruct the Commissioner to promptly file the exhibits that are the subject of the Commissioner's motion.
Only 22 of the exhibits are referenced in the numbered paragraphs of the stipulation. (That is, Exhibits 1-J, 2-J, 3-J, 4-J, 8-J, 9-J, 11-J, 12-J, 13-J, 14-J, 15-J, 16-J, 17-J, 31-J, 35-J, 37-J, 38-J, 39-J, 48-J, 49-J, 50-J, and 51-J are referred to (though not in sequential order) in paragraphs 2, 9, 12, 13, 14, 21, 26, 27, 28, 31, 32, 34, 35, 36, 37, 39, 40, 50, 54, and 58). The other 30 exhibits, although referred to generally in the preamble, are not referred to by number in the numbered paragraphs of the proposed stipulation--a fact we did not perceive when we ruled on the motion.
By order (Doc. 78) we granted the motion and ordered petitioner to "show cause why the matters covered in the motion (i.e., proposed stipulations nos. 1-79, with exceptions as noted in the motion) should not be deemed admitted for the purposes of the case." Thus, our order did not refer explicitly to the preamble, which is the location of the Commissioner's general assertions about the exhibits.
In the experience of the judge signing this order, stipulations of fact filed in the Tax Court that include exhibits do sometimes relegate to the preamble general assertions about the exhibits (sometimes addressing authenticity, admissibility, and reservation of objections). However, exhibits are generally identified in paragraphs to the stipulation; and this practice facilitates the stipulation process by giving an occasion for the responding party to note an objection or propose a revision by reference to a paragraph number. We think that this general practice accords with Rule 91(b) ("The stipulation must be clear and concise") and Rule 91(f)(1)(A) ("The motion must: (A) identify with particularity and by separately numbered paragraphs each matter that is claimed for stipulation") better than referring to only some but not all of the exhibits in numbered paragraphs of the proposed stipulation. We think that petitioner's counsel is capable of responding to the motion despite its imperfections; and therefore we will not vacate our order, strike the motion, and require the Commissioner to start over; but we do ask that, in future filings, counsel follow the instructions given here.
It is
ORDERED that as soon as possible, and in any event no later than November 7, 2023, the Commissioner shall file a supplement to his motion for an order to show cause, which supplement shall include copies of the exhibits that are the subject of the Commissioner's motion. It is further
ORDERED that the motion to amend is granted, in that we here clarify that our order to show cause requires that petitioner, in his response due November 16, 2023, shall respond to the assertions in the preamble of the proposed stipulation as to the exhibits listed in pages 16-20 of the proposed stipulation (with the exceptions noted in the motion).