Opinion
14433-17 14434-17 14435-17
03-01-2023
HABITAT GREEN INVESTMENTS, LLC, MM BULLDAWG MANAGER, LLC, TAX MATTERS PARTNER, ET AL., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
DAVID GUSTAFSON JUDGE
These three consolidated cases involve charitable contribution deductions taken for conservation easements. We will order the parties to propose a schedule for further proceedings.
These three cases were filed in June 2017. We previously granted a motion for partial summary judgment that would have resolved the issue of the deductibility of the contribution (see Doc. 34 in No. 14433-17, the docket record we use in this order). However, in response to Hewitt v. Commissioner, 21 F.4th 1336 (11th Cir. Dec. 29, 2021), rev'g and remanding T.C. Memo. 2020-89, we vacated that order in March 2022 (see Doc. 62); and in response to the Supreme Court's denial of a writ of certiorari in Oakbrook Land Holdings, LLC v. Commissioner, 28 F.4th 700 (6th Cir. 2022), aff'g 154 T.C. 180, 189-200 (2020), cert. denied, 2023 WL 124412 (Jan. 9, 2023), we ordered (see Doc. 74) that the parties file status reports proposing further proceedings, which they did. Respondent's report (Doc. 75) states:
4. Respondent anticipates that these cases will need to be placed on a special trial session due to the number of anticipated issues and witnesses, including expert witnesses. Subject to the availability of the Court, Respondent requests that the trial be set for a date in 2024.
5. Respondent may file a motion to consolidate these cases with the related case, St. Andrews Plantation, LLC [ v. Commissioner, Dkt. No. 20849-17].
6. After a trial date is set for these cases, Respondent anticipates conferring with Petitioners in an attempt to propose scheduling order setting forth pretrial deadlines.
Petitioners' report (Doc. 76) proposes no deadlines or schedule but concludes: "Consolidation of the fourth case [St. Andrews] would be unjust, would not speed any case, and would compound all Petitioners' expenses."
These three cases are in at least some factual and legal respects related to St. Andrews. On February 24, 2022, we held a telephone conference with counsel in St. Andrews (i.e., with the same attorney who represent the parties in these three cases), and we explained that we are disinclined to consolidate these cases with St. Andrews. On February 27, 2023, we issued in St. Andrews an order (Doc. 92 in that case) setting deadlines for discovery and certain pretrial activities, and ordering the parties to propose by May 31, 2023, a schedule for the remaining pretrial activities. We will order the same for these three cases.
We acknowledge both the possibility that counsels' work on St. Andrews may increase the difficulty of working simultaneously on these three cases and the possibility that working first on St. Andrews may create economies and efficiencies for later work on these three cases. Counsel will have more information with which to make those judgments; and if they are able to agree, we would favorably entertain a joint motion to extend or vacate the deadlines we state here (other than the deadline of March 31, 2023, for the filing of the first stipulation of facts, as to which we would expect that no extension would be needed). But in the absence of even broad consensus of the parties, it is
ORDERED that, no later than March 31, 2023, the parties shall jointly file a first stipulation of facts, that shall include, for all three cases, (a) the agreed facts and documents showing that we have jurisdiction over these cases, (b) the agreed basic facts and documents (such as the deeds of easement) showing the contributions at issue in these cases and (c) all other undisputed facts asserted by and undisputed documents submitted by the parties in support of or opposition to the Commissioner's motions for partial judgment (see Docs. 17, 20), in petitioner's request for admissions and the Commissioner's response (Doc. 25, 29), and in other filings (see, e.g., Docs. 48). It is further
ORDERED that petitioner may propound to respondent a contention interrogatory asking the Commissioner to specify each and every specific issue on which the Commissioner may rely at trial to argue that the disallowance of the charitable contribution deduction should be sustained, to which the response shall be due April 28, 2023. It is further
ORDERED that the parties shall promptly begin any additional discovery that they need to conduct in this case on any issue. Formal discovery requests shall be served no later than May 31, 2023 (so as to require responses by June 30, 2023); and any motion to compel shall be filed no later than July 28, 2023. It is further
ORDERED that, no later than May 31, 2023, the parties shall file a joint status report (or, if that is not expedient, then separate reports) giving their joint or several recommendations for a schedule for: the exchange of expert witness reports; the conducting of any interviews or depositions of experts (and any other additional discovery limited to the experts and their opinions); the exchange of any expert rebuttal reports; the submission of a comprehensive stipulation (which will supplement and complete the first stipulation to be filed by March 31, 2023), and which the parties may agree to submit in installments); and pretrial memoranda.