Opinion
20849-17
10-06-2023
ST. ANDREWS PLANTATION, LLC, JOSEPH N. MCDONOUGH, TAX MATTERS PARTNER, Petitioner v. COMMISSIONEROF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
Petitioner has filed a motion to compel (Doc. 114, requesting information about compliance with section 6751(b)(1)) and a motion to review the sufficiency of responses to requests for admissions (Doc. 116). We will order the Commissioner to file responses to these motions.
Having not yet heard from the Commissioner, we do not prejudge the motions. However, we think it may enable the Commissioner to file a more helpful response to the second motion (concerning requests for admissions), and may help petitioner's composing a reply, if they know our first impressions based on our first reading of the motion.
For some requests (such as Nos. 1-3, 21), the Commissioner has admitted the existence or authenticity of a document but, as to the proposition that petitioner hoped he would admit, has stated: "Otherwise denied." Petitioner's motion seems to complain that this is an evasive answer and that the Commissioner ought to be able to admit it. But unless we misunderstand, this is a denial by the Commissioner. It is also a "failure to admit" for purposes of Rule 90(g). We cannot compel a party to admit something it has denied. Rather, if we were later to find that the proposition had been true and that a party had denied it without good cause, then sanctions under Rule 104 might be appropriate (including, for example, imposing on that party the cost that his opponent incurred to prove the true proposition).
For some requests (such as No. 20, 27(a), (d), (i) and (k), 32(j)), the Commissioner's response is "Denies"-a failure to admit. Again, we cannot compel a party to admit something it has denied.
For some requests (such as Nos. 4, 5, 11-18, 24-26, 27(f) and (k), 37-46), the Commissioner has responded that he is unable to admit or deny. Rule 90(c)(1) does indeed permit a response "asserting that it cannot be truthfully admitted or denied and setting forth in detail the reasons why this is so". But some of these propositions seem quite likely; the Commissioner's "reasons why this is so" are stated very concisely; and we cannot entirely rule out the possibility that the Commissioner might simply be being stubborn. Unless discovery is pending that might generate contrary information, we encourage the Commissioner to consider admitting some of these.
For some requests (such as Nos. 22 and 32(i)), the Commissioner seems to have made a purported admission of a fact other than the one asserted and has failed to respond to the actual assertion.
The response to No. 47 appears to be an admission.
It is
ORDERED that, no later than November 3, 2023, the Commissioner shall file a response to petitioner's motion to compel (Doc. 114), and that, no later than November 17, 2023, petitioner shall file a reply. It is further
ORDERED that, no later than November 3, 2023, the Commissioner shall file a response to petitioner's motion to review the sufficiency of responses to requests for admissions (Doc. 116), and that, no later than November 17, 2023, petitioner shall file a reply.