Opinion
23373-18
12-23-2021
Peak Potentials Training International Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson, Judge
Now before the Court is petitioner's motion (Doc. 51) for international assistance, to which was attached a proposed request to be issued by the Tax Court. Petitioner desires to take a foreign deposition pursuant to Rule 82(e)(2). Respondent initially objected (see Doc. 55), and in the objection he stated: "Respondent consulted with the Department of Justice's Office of Foreign Litigation to ensure the procedures for requesting foreign discovery in the proposed letters rogatory are followed." Petitioner filed a reply (Doc. 57), which states that the parties have reached full agreement on the revised language of the proposed request, which is attached. The Court commends the parties for their cooperation.
Rule 82(e)(2) provides:
Foreign depositions. In a foreign country, depositions may be taken . . . pursuant to a letter rogatory or a letter of request issued in accordance with the provisions of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, Mar. 18, 1970, 23 U.S.T. (Part 3) 2555. . . . The party seeking to take a foreign deposition shall contact the United States Department of State to ascertain any requirements imposed by it or by the foreign country in which the deposition is to be taken, including any required foreign language translations and any fees or costs, and shall submit to the Court, along with the application, any such foreign language translations, fees, costs, or other materials required. It is not requisite to the issuance of a commission, a letter rogatory, or a letter of request that the taking of the deposition in any other manner be impracticable or inconvenient; and both a commission and a letter rogatory, or both a commission and a letter of request, may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in [here name the country]." A letter of request is addressed to the central authority of the requested State. The model recommended for letters of request is set forth in the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. . . .
So that the Court may entertain the motion, it is
ORDERED that, no later than January 31, 2022, petitioner shall file a supplement to its motion that shall clarify its compliance with Rule 82(e)(2) in these particulars:
• The procedure is to be conducted "in accordance with the provisions of" the cited treaty, and presumably the country in which the deposition will take place would be a signatory of the treaty.
• The rule states that "[t]he party seeking to take a foreign deposition shall contact the United States Department of State".
• In some circumstances the moving party must submit translations, fees, or costs.
• The rule addresses "a commission, a letter rogatory, or a letter of request", and it is unclear which of these means is appropriate.
• The rule states that "[t]he model recommended for letters of request is set forth in" the treaty, and it would be helpful if petitioner could provide a copy of that recommended model. (A request for international judicial assistance was issued by the Tax Court as Doc. 64 in Estate of Flandreau v. Commissioner, No. 13128-13, and the format differed from petitioner's proposal.)
It is further
ORDERED that, if either party believes that a telephone conference with the Court would be helpful for resolving these questions, then counsel for the parties shall contact the chambers administrator of the undersigned judge (at 202-521-0850) for the purpose of scheduling such a telephone conference.