Opinion
2824-20
03-10-2023
KIRK STEVENS & SHANNON STEVENS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Richard T. Morrison Judge
On February 20, 2023, petitioners filed a Motion to Depose Pursuant to Rule 74 (Doc. 93). The motion seeks to depose former revenue agents Battaglino and Orth.
On March 8, 2023, respondent filed a response to petitioners' Motion to Depose Pursuant to Rule 74 objecting to the motion on the grounds that the petitioners' notification to Battaglino and Orth, which is required under Rule 74(c)(2)(A), was untimely. Respondent correctly points out that the Tax Court's scheduling order, served December 9, 2022, which set a January 30, 2023 deadline for the parties to "file any motions to depose a nonparty fact witness under Rule 74(c)(2)(A)" was actually intended to set the deadline for service of notices of deposition pursuant to Rule 74(c) (2)(A). We need not reach this issue regarding the timeliness of the notice of deposition because we hold that petitioners' Motion to Depose lacks merit for other reasons advanced by respondent. A nonconsensual deposition such as that requested by the petitioners is an "extraordinary method of discovery." Rule 74(c)(1)(B). The deposition testimony of Battaglino and Orth would relate to the petitioners' claim that it was Orth, not Battaglino, who made the initial determination to assert penalties. But Battaglino and Orth's activities have been extensively documented by records already in the hands of the petitioners. Any further records could have been sought by petitioner from respondent through discovery. Nothing precludes Battaglino and Orth from being available to testify at trial. There is no specific or compelling reason to have them testify by deposition for discovery purposes.
Therefore, it is ORDERED that petitioners' February 20, 2023 Motion to Depose Pursuant to Rule 74 is denied.