Opinion
11814-19
08-16-2022
OCONEE LANDING PROPERTY, LLC, OCONEE LANDING INVESTORS, LLC, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Albert G. Lauber Judge
This case, currently calendared for trial in Atlanta, Georgia, beginning November 14, 2022, involves a charitable contribution deduction claimed by Oconee Landing Property, LLC (Oconee), for the donation of a conservation easement. On October 6, 2021, the Internal Revenue Service (IRS or respondent) filed motions to compel the taking of depositions of non-party witnesses Thomas F. Wingard and Martin H. Van Sant. Messrs. Wingard and Van Sant prepared the appraisal supporting the value that petitioner placed on the easement.
By Order served November 24, 2021, we granted respondent's motions. Mr. Wingard was deposed on February 11, 2022, and Mr. Van Sant was deposed on March 8 and 9, 2022. Messrs. Wingard and Van Sant were represented by counsel during their depositions. When they were asked any question referring to "syndicated conservation easements," their counsel invoked their Fifth Amendment privilege against self-incrimination and instructed them not to answer. In response to other questions their counsel invoked what he called the "section 6103 privilege." Section 6103 of the Code bars officers and employees of the IRS from disclosing confidential taxpayer return information.
On July 29, 2022, respondent filed four Motions seeking to compel Messrs. Wingard and Van Sant to answer the questions as to which these claims of privilege had been made. On August 12, 2022, the Court held an informal conference call with the parties and deponents' counsel to discuss the Motions. We informed deponents' counsel that we would have overruled all of his objections referring to section 6103 because that section imposes an obligation on IRS officers, not a privilege that appraisers may claim. Furthermore, we indicated that we would have overruled most (if not all) of his objections based on the Fifth Amendment because the questions asked were anodyne and appeared to create no "real danger" of self-incrimination. Rogers v. United States, 340 U.S. 367, 374 (1951).
In lieu of the Court's ordering a second round of depositions, deponents' counsel agreed that each deponent will respond to a maximum of 45 written questions posed by respondent. These questions should relate to matters as to which privilege was claimed during the depositions, including reasonable follow-up questions. All questions shall be answered under penalties of perjury, as was the case during the depositions. Deponents' counsel was reminded that any objection to a written question premised on a supposed "section 6103 privilege" will likely be overruled. If the Fifth Amendment privilege is claimed as to any question, deponents' counsel shall supply a detailed explanation concerning the basis for that claim, cognizant that the Fifth Amendment protects against real dangers, not against remote and speculative possibilities. Zicarelli v. N.J. State Comm'n, 406 U.S. 472, 478 (1972).
Upon due consideration, it is
ORDERED that respondent may issue to Messrs. Wingard and Van Sant, by August 26, 2022, up to 45 written questions as discussed during the conference call. Respondent shall serve petitioner with a copy of these questions. It is further
ORDERED that Messrs. Wingard and Van Sant shall answer these questions, under penalties of perjury, within 14 days of their counsel's receipt of the questions from respondent. It is further
ORDERED that deponents' counsel shall supply petitioner's counsel with a copy of Messrs. Wingard's and Van Sant's written answers, concurrently with his submission of those answers to respondent.
If respondent is not satisfied with the written answers provided by Messrs. Wingard and Van Sant, he may file an appropriate motion within 14 days of receiving their responses.