Opinion
14941-18
05-10-2023
CRAIG K. POTTS & KRISTEN H. POTTS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Cary Douglas Pugh, Judge
This case is set for trial at a Special Trial Session of the Court on November 6, 2023, in Phoenix, Arizona. On May 5, 2023, petitioners filed an Application to Take Deposition of Subpoena to Testify at a Deposition for Ernest Jack Tatum, that we struck as improper under our Rules by Order dated May 8, 2023. On May 10, 2023, petitioners filed a Motion to Compel the Taking of Deposition. This motion also fails to comply with Rule 74, U.S. Tax Court Rules of Practice and Procedure (which we cited in our May 8, 2023, Order), as we explain below.
Paragraph (b)(1) of Rule 74 provides that "[a] party's consent [to a deposition for discovery purposes of a nonparty witness] must be set forth in a stipulation filed with the Court". Petitioners have not filed that stipulation (although their motion may have been intended to satisfy that requirement). Paragraph (b)(3) provides that the party seeking the deposition "must annex to the motion the notice of deposition with proof of service thereof, together with a copy of the response and objections, if any". Petitioners did not attach these documents to their motion and without them the Court cannot determine whether the nonparty witness has been afforded the 15 days to timely object to the deposition that is provided under Rule 74(b)(3) or understand the basis, if any for objecting. (We note that the filing we struck in our May 8, 2023, Order included a deposition subpoena dated May 5, 2023, with no proof of service.)
The Court will deny petitioners' motion without prejudice and advise petitioners that they should ensure that future filings comply with the Tax Court Rules of Practice and Procedure. The Court is not inclined to grant extensions of time for delays caused by failures to adhere to these Rules, particularly after directing the parties to their requirements. It is therefore
ORDERED that petitioners' Motion to Compel the Taking of Deposition, filed May 10, 2023, is denied without prejudice.