Opinion
15064-21S
09-09-2022
JOHN D. GUGLIOTTA & ELENI E. GUGLIOTTA, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Elizabeth A. Copeland Judge
This case is calendared for trial at the Trial Session of the Court scheduled to commence on November 7, 2022, for cases in which Cleveland, Ohio is designated as the place of Trial.
On August 12, 2022, Petitioners made a single filing to this Court consisting of three documents, labeled "Petitioner's First Set of Requests for Admission," "Petitioner's First Request for Production of Documents to Respondent," and "Petitioner's First Set of Interrogatories to Respondent." These documents were simultaneously served on Respondent and later segregated into separate discovery filings served on Respondent. On September 9, 2022, the parties filed a Joint Motion for Extension of Time to Respond to Discovery. The extension of time will be accommodated, as modified per the discussion that follows. First and foremost, we would like to set out some relevant discovery rules, all rule references referring to the Tax Court Rules of Practice and Procedure that can be found at the Tax Court's website: https://www.ustaxcourt.gov. The relevant rules are as follows:
Rule 90 permits any party, without leave of the Court, to serve upon any other party a written request for admissions about matters relevant to the action, which matters are deemed admitted absent a response within 30 days of service. "However, the Court expects the parties to attempt to attain the objectives of such a request through informal consultation or communication before utilizing the procedures provided in this Rule." Rule 90(a).
Rule 72 permits any party, without leave of the Court, to serve upon any other party a request for production of documents or electronically stored information.
Rule 71 permits any party, without leave of the Court, to serve upon any other party no more than 25 written interrogatories. The responding party shall have 30 days to serve its answers on the requesting party, which may file a motion to compel answers only after the expiration of such time. "Prior to a motion for such an order, neither the interrogatories nor the response shall be filed with the Court." Rule 71(c).
Rule 70 generally permits formal discovery requests by any party. "However, the Court expects the parties to attempt to attain the objectives of discovery through informal consultation or communication before utilizing the discovery procedures provided in these Rules." Rule 70(a)(1).
Petitioners did not serve the above-named documents on Respondent prior to filing them with the Court and did not attempt to obtain the desired information through informal communication with Respondent. In accordance with Rules 90, 72, 71, and 70, Petitioners must attempt informal communication and/or service of their requests on Respondent prior to filing any related motion with this Court.
A motion to compel discovery is only proper after there has been a failure to respond to informal discovery. Rule 104(b). Moreover, our rules and longstanding precedent require efforts at informal discovery before resorting to formal discovery. See Rule 70(a)(1) and Branerton Corp. v. Commissioner, 61 T.C. 691 (1974). Thus, to adequately support a motion to compel, petitioners must show that they made timely efforts at informal discovery, that they made timely efforts at formal discovery, and that Respondent failed to adequately respond to the requests that were made.
As Petitioners make these efforts, we advise them to ensure that their interrogatories and their requests for production of documents are not overbroad or onerous. Discovery is limited to material which is "relevant to the subject matter involved in the pending case," Rule 70(b), and must not be "unduly burdensome or expensive, taking into account the needs of the case," Rule 70(c)(1).
We likewise advise Petitioners that many, if not all, of the relevant documents they have requested separately from Respondent are likely to be found in the administrative record of the examination of Petitioner's 2018 return performed by the Internal Revenue Service's (IRS's) Examination Division. Petitioners may wish to request a copy of this record from Respondent prior to making any more-specific requests. See Rule 70(c)(1)(B) (discovery shall be limited by the Court if "[t]he discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.").
We note that the parties have acknowledged that the case is currently pending before the IRS Independent Office of Appeals and that settlement discussions are ongoing. We further note that all of Petitioner's motions were premature. We finally note that while Petitioner's requests for admissions is in the proper form, Petitioner's motion to compel production of documents and to compel answers to interrogatories were not. For all the foregoing reasons, we are striking the request for admissions and denying the formal discovery at this time but allowing Petitioner to resubmit such requests in the event that informal discovery efforts are unsuccessful.
To reflect the forgoing, it is
ORDERED that "Petitioner's First Set of Requests for Admission" filed August 12, 2022, is deemed stricken from the record. This action is taken without any prejudice to Petitioner to file anew a request for admission on the same matters.
ORDERED that "Petitioner's First Request for Production of Documents to Respondent" filed August 12, 2022, is recharacterized as "Petitioners' Motion to Compel Production of Documents" in the docket record. It is further
ORDERED that the recharacterized Petitioners' Motion to Compel Production of Documents is denied without prejudice to refile. It is further
ORDERED that "Petitioner's First Set of Interrogatories to Respondent" filed August 12, 2022, is recharacterized as "Petitioners' Motion to Compel Responses to Interrogatories" in the docket record; It is further
ORDERED that the recharacterized Petitioners' Motion to Compel Responses to Interrogatories is denied without prejudice to refile. It is further
ORDERED that the parties Joint Motion for Extension of Time to Respond to Discovery filed September 9, 2022, is denied as moot.