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Plotkin v. Comm'r of Internal Revenue

United States Tax Court
Nov 3, 2022
No. 16224-14L (U.S.T.C. Nov. 3, 2022)

Opinion

16224-14L

11-03-2022

MARTIN G. PLOTKIN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent


ORDER

Richard T. Morrison Judge

On October 21, 2020, this case was set for a remote trial on February 24, 2021.

On January 4, 2021, petitioner moved for a continuance. Petitioner explained that his medical conditions would not allow him to personally operate a computer to participate in a remote trial. Petitioner explained that he would need more time to seek assistance from third parties to operate the computer to allow petitioner to participate in a remote trial.

On January 28, 2021, respondent moved to remand the case to Appeals.

On February 3, 2021, the Court granted respondent's motion to remand the case to Appeals. It also continued the trial from the February 24, 2021 trial date.

On July 12, 2022, the Court ordered this case set for an in-person trial on November 1, 2022.

On October 26, 2022, petitioner moved to submit the case pursuant to Rule 122, Tax Court Rules of Practice and Procedure. The motion stated that submission under Rule 122 was appropriate because of "sufficiency of the facts in the Court's record and the party's [sic] lack of dispute as to any of the facts."

The motion stated that although petitioner had not contacted respondent about the motion, "there is no reason to believe [r]espondent will not join in this motion." The motion also stated that due to petitioner's medical conditions, "petitioner has been unable to travel for the past 3-4 years."

On October 28, 2022, the case was stricken for trial because of reasons related to COVID-19.

Rule 122(a) provides:

Any case not requiring a trial for the submission of evidence (as, for example, where sufficient facts have been admitted, stipulated, established by deposition, or included in the record in some other way) may be submitted at any time after joinder of issue (see Rule 38) by motion of the parties filed with the Court. The parties need not wait for the case to be calendared for trial and need not appear in Court.

The Court is not convinced that it is yet appropriate to submit the case under Rule 122. The parties have not filed a stipulation of facts, which often (with its attached exhibits) serves as the trial record in cases submitted under Rule 122. Although the parties have filed summary-judgment papers, and have attached various documents to those papers, the Court is not assured that both parties think that all such attachments should be part of the trial record. Petitioner has not identified specifically which documents he thinks should be in the trial record. Respondent has not joined in the Rule 122(a) motion, so we do not know respondent's views on which documents should be in the trial record. Furthermore, the attachments are scattered through the various court papers filed in this case. And the attachments are not numbered consecutively. Finally, because we do not know whether respondent agrees with the Rule 122(a) motion, we do not know whether respondent (like petitioner) is willing to waive the right to call witnesses.

Even in Rule 122 cases, the Court often requires briefs from the parties. It is best that the trial record be formed before the briefs are filed. This can be done by stipulation or through having a trial at which the parties can introduce the documents they think should be in the trial record.

It is possible that the parties may not agree to a stipulation. To account for this possibility, it is best to set this case for trial. To set the case for trial is also appropriate to account for the possibility that respondent does not agree to join in the Rule 122 motion.

Because petitioner has indicated that he is unable to travel to an in-person trial, the trial will be a remote trial. An order setting the date of the remote trial will be issued separately.

It is

ORDERED that petitioner's Rule 122 motion is taken under advisement.


Summaries of

Plotkin v. Comm'r of Internal Revenue

United States Tax Court
Nov 3, 2022
No. 16224-14L (U.S.T.C. Nov. 3, 2022)
Case details for

Plotkin v. Comm'r of Internal Revenue

Case Details

Full title:MARTIN G. PLOTKIN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE…

Court:United States Tax Court

Date published: Nov 3, 2022

Citations

No. 16224-14L (U.S.T.C. Nov. 3, 2022)