Opinion
12104-19
03-25-2024
NORTH BY NORTHWEST IV, LLC, BRYAN W. KELLEY, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Elizabeth Crewson Paris Judge.
This case is one of six related cases.
The six cases are North by Northwest, VII, LLC v. Commissioner, Docket No. 12101-19; North by Northwest, VI, LLC v. Commissioner, Docket No. 12102-19; North by Northwest V, LLC v. Commissioner, Docket No. 12103-19; North by Northwest IV, LLC v. Commissioner, Docket No. 12104-19; North by Northwest III, LLC v. Commissioner, Docket No. 12105-19, and North by Northwest II, LLC v. Commissioner, Docket No. 12106-19.
On July 14, 2023, docket entry 116, respondent filed a First Amendment to Answer. On September 5, 2023, docket entry 118, petitioner filed a Reply to First Amendment to Answer.
Before the Court in this case is respondent's Motion to Strike, filed October 5, 2023, docket entry 119. Respondent moves the Court, pursuant to Rule 52, Tax Court Rules of Practice and Procedure, to strike from petitioner's Reply to Amendment to Answer certain subparagraphs as false, redundant, immaterial, impertinent, frivolous, or scandalous. On November 17, 2023, docket entry 123, petitioner filed an Objection to Respondent's Motion to Strike.
Respondent filed similar but not identical motions in the other five related cases.
By Order dated October 17, 2023, docket entry 122, the Court directed that both petitioner's Reply to First Amendment to Answer, docket entry 118, and respondent's Motion to Strike, docket entry 119, be placed under temporary seal. By Order dated November 30, 2023, docket entry 125, the Court directed that petitioner's Objection to Motion to Strike, docket entry 123, be placed under temporary seal.
Rule 52 provides in relevant part that "the Court may order stricken from any pleading . . . any redundant, immaterial, impertinent, frivolous, or scandalous matter." The Court will not order a matter stricken from a pleading "unless it is clear that it can have no possible bearing upon the subject matter of the litigation." Estate of Jephson v. Commissioner, 81 T.C. 999, 1001 (1983).
The subparagraphs that respondent characterizes as "redundant, immaterial, impertinent, frivolous, or scandalous" are not "redundant," and would not be "impertinent" or "immaterial" if proven at trial. Therefore, it is unclear whether the subparagraphs "can have no possible bearing on the subject matter" of this case. Further, these subparagraphs are no more "scandalous" than other statements the parties have made in this case.
Accordingly, the Court will deny respondent's Motion.
After due consideration, it is
ORDERED that respondent's Motion to Strike filed October 5, 2023, docket entry 119, is denied. It is further
ORDERED that the filings at docket entries 118, 119, and 123, are unsealed and made viewable.