Opinion
2966-19
04-08-2022
CHRISTOPHER S. PASCUCCI & SILVANA B. PASCUCCI, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
Now pending is a motion in limine (Doc. 58), as to which we will order a response, and a motion (Doc. 55) to submit the case under Rule 122, which we will hold in abeyance.
The parties have filed a first and second stipulation of facts (Docs. 44, 51) and a stipulation of settled issues (Doc. 53). The Commissioner had stated relevance objections to certain exhibits in the second stipulation. On April 4, 2022, the Court heard argument on those objections, overruled them, and admitted the exhibits into evidence, along with the other exhibits in the parties' first and second stipulations--rulings that were all repeated in an order (Doc. 56) issued the next day. At the hearing both parties affirmed (cf. Doc. 49) that they intended to move to submit the case as fully stipulated under Rule 122.
However, at that April 4 hearing petitioners' counsel stated an intention to argue that the Commissioner is bound by judicial estoppel from making certain contentions in this case. The Court discussed with petitioners' counsel several questions about the contention that came immediately to mind. The Commissioner responded to petitioners' counsel's statement by observing that under Rule 39 such an estoppel must be pleaded, whereas the petitioners have not so pleaded. The Court noted the Rule 39 objection and its plausibility, observed on the other hand that leave to amend could be granted in the absence of prejudice (or if any prejudice could be cured), and stated that it would not rule on the matter unless and until it was actually presented. Since no trial date has yet been set in this case, it would seem that any prejudice that might otherwise arise from allowing amendment of the petition to plead judicial estoppel would be preempted or cured by allowing discovery. It seems that the only thing that might preclude such a cure would be the submission of the case under Rule 122. And yet the Commissioner joined with petitioners in filing such a motion (Doc. 55) later that same day, and the parties stated therein an agreed-upon briefing schedule (with opening briefs due June 17, 2022).
Ordinarily, we would promptly grant such a motion; but on April 6, 2022, the Commissioner filed a motion in limine (Doc. 58) asking the Court to preclude the judicial estoppel contention. The motion complains that the estoppel argument was not raised timely. The motion does not contain the word "prejudice", but that may be because the Commissioner urges that the contention has been articulated only tersely, and he might say that one cannot yet tell whether prejudice results. Presumably this can be fleshed out by requiring petitioners to respond to the motion in limine and by giving them a deadline for any attempted amendment of the pleadings. It is therefore
ORDERED that, no later than April 22, 2022, petitioners shall file a response to the motion in limine. If either party intends to move for leave to amend its pleading, then it shall file the motion for leave no later than that same date. It is further
ORDERED that the joint motion to submit the case under Rule 122 shall be held in abeyance until resolution of the motion in limine (and of any motion that is filed for leave to amend the pleadings).