Opinion
6446-19L
11-22-2021
Wendell C. Robinson & May T. Jung-Robinson Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
DAVID GUSTAFSON, JUDGE
This case is scheduled for trial at the Tax Court's session in Washington, D.C., beginning December 13, 2021. This is a "collection due process" ("CDP") case in which, as far as we can tell, petitioners have not requested any collection alternative, and the only issue visible so far is whether petitioners owe a liability that the IRS asserted on account of alleged "mathematical or clerical error[s]" (under section 6213(g) (2)) on petitioners' returns. In response to an inquiry by the Court made during a telephone conference held on November 9, 2021, among the Court and the parties, petitioners expressed a preference for an in-person trial (rather than a remote trial via zoomgov.com). The undersigned judge stated an intention to hold an in-person trial. (See Doc. 56.)
On November 12, 2021, the Commissioner filed a status report (Doc. 57) that stated: "Respondent's Settlement Officer is unable to travel to Washington, DC in order to testify in person during the December 13, 2021, trial session. The Settlement Officer is available to testify remotely during such trial session." We ordered (see Doc. 58) that the Commissioner file a supplement to his status report giving additional information about the anticipated testimony of the Settlement Officer ("SO"). On November 19, 2021, the Commissioner filed such a supplement (Doc. 59), in which he stated that the SO "will testify about the activity taken, the steps used, and explain the analysis of documents obtained and provided in handling petitioners' CDP hearing request" and that the SO's testimony "is needed to primarily authenticate all documents in the administrative file and to lay the proper foundation for hearsay exceptions to allow the documents to be admitted into evidence." The Commissioner repeats the request that the Court "permit [the SO] to testify remotely in an otherwise in-person trial".
This supplemental explanation does not convince us of any actual need for testimony by the SO--especially if (as it appears) the disputed issue is whether there were mathematical errors on the returns, which would seem to be an issue that can (and perhaps must) be presented by documents. In the telephone conference with the parties, we instructed petitioners to cooperate in stipulating the facts and documents of this case. (See also Doc. 56.) Moreover, the Commissioner can and presumably should prepare to present the documents on which he relies by means of self-authentication under Federal Rule of Evidence 902. In particular, he should perhaps consider whether to comply with the requirements of Rule 902(11). For authenticating documents, the Commissioner is often able to use agency personnel with no prior connection to the case to authenticate documents pursuant to Rule 901(b)(7) or otherwise. It is therefore 1
ORDERED that the parties shall file their pretrial memoranda (due November 22, 2021) and their stipulation of facts (due November 29, 2021) on the assumption that the trial will be held entirely in person. An order providing the details of the date and time of the trial will be issued in due course. 2