Opinion
7045-19
11-23-2021
Picayune Pearl Aggregates, LLC, Picayune Pearl Aggregates Investors, LLC, Tax Matters Partner, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER
Courtney D. Jones Judge.
This case concerns the disallowance of a $170 million deduction claimed under section 170 for the charitable conveyance of property in 2015 by petitioner, Picayune Pearl Aggregates, LLC (Picayune). On September 27, 2021, respondent filed respective motions to compel the depositions of Michael A. Thomas and Michael F. Wick (docket entry nos. 48 and 49) under Rule 74(c). On October 25, 2021, the Court ordered petitioner to file responses to the motions on or before November 15, 2021 (docket entry no. 53) and petitioner did so (docket entry nos. 55 and 56).
Unless indicated otherwise, all section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Mr. Thomas and Mr. Wick were involved in the authorship of certain valuation reports utilized by Claude Clark III. Mr. Clark prepared the "qualified appraisal" of the underlying property for purposes of section 170(f)(11)(D) and upon which the $170 million deduction at issue is premised. Respondent seeks to depose Mr. Thomas and Mr. Wick concerning their work on the aforementioned valuation reports, which predate the start of this case.
As stated previously, the Court agrees with respondent that discovery concerning Mr. Thomas and Mr. Wick's work with respect to the valuation reports predating the commencement of this action is proper. Accordingly, it is
Picayune is correct to point out that non-testifying experts who are retained in anticipation of litigation or for purposes of trial preparation are generally protected from being deposed under Rule 70(c)(4)(C), however, respondent does not seek to depose Mr. Thomas and Mr. Wick in their current capacities as consultative experts.
ORDERED that respondent's Motion to Compel the Taking of Deposition of Nonparty Witness Michael A. Thomas (docket entry no. 48), filed September 27, 2021, is granted and the deposition of Mr. Thomas shall be taken before an officer authorized to administer oaths by laws of the United States, in accordance with the Rules of this Court. It is further
ORDERED that respondent's Motion to Compel the Taking of Deposition of Nonparty Witness Michael F. Wick (docket entry no. 49), filed September 27, 2021, is granted and the deposition of Mr. Wick shall be taken before an officer authorized to administer oaths by laws of the United States, in accordance with the Rules of this Court. It is further
ORDERED that, on or before December 1, 2021, the parties shall schedule the depositions of Michael A. Thomas and Michael F. Wick, as the parties may agree or, as respondent may designate in the event they are unable to agree. It is further
ORDERED that the aforementioned depositions shall be taken on or before January 31, 2022, as the parties may agree or, as respondent may designate in the event they are unable to agree.