Opinion
13705-16 5354-18 11261-19
06-11-2021
Bernand T. Swift, Jr. & Kathy L. Swift, Petitioners v. Commissioner of Internal Revenue, Respondent
ORDER
PATRICK J. URDA, JUDGE
This case was tried before Judge Patrick J. Urda at a remote special trial session associated with San Antonio, Texas, which began on April 5, 2021. Before trial, the parties filed several motions in limine that the Court held in abeyance or denied without prejudice.
For his part, the Commissioner filed a motion in limine that sought to exclude an attachment to the expert report of Michael E. Angelina, and, further, to prohibit any reference to that attachment in Mr. Angelina's report or testimony. (Doc. 98.) At trial, the Commissioner reiterated the objection contained in his motion in limine when the Swifts offered Mr. Angelina's expert report into evidence. We overruled this objection and admitted the report. Consistent with this ruling, we will deny the Commissioner's motion in limine.
"Doc." references are to the documents compiled in the lead docket index for these cases, docket no. 13705-16.
The Swifts also filed motions in limine, seeking to exclude the expert reports of Daniel Lupton and Toni Mulder and the expert report of Donald Bendure. (Docs. 99, 100.) We held the former motion in abeyance to assess the potential challenges to cross examination presented by a jointly authored report. In light of the cross examination of both experts at trial, we will deny the motion in limine and admit the expert reports into evidence as Exhibits 1833-R, 1834-R, and 1835-R.
As to the report of Mr. Bendure, we previously denied without prejudice the Swifts' motion in limine as their challenge went to the weight we should give the expert report, rather than its admissibility. (Doc. 134.) The Swifts raised a similar objection to the report at trial, which, after due consideration, we will overrule. We accordingly will admit Mr. Bendure's expert report as Exhibit 1836-R.
At trial, the Court accepted into evidence Exhibits 1831-R and 1832-R, the expert and addendum reports of David T. Russell. The Commissioner subsequently moved into evidence an errata sheet and certain other documents that were intended to correct errors in the reports. The Swifts objected to the admission of these exhibits (Exhibits 1837-R, 1866-R, and 1867-R), and moved to strike the expert and addendum reports as unreliable. Again, the Swifts' objections go to the weight we should give the expert's opinions. We will thus deny the motion to strike and overrule the objections, admitting Exhibits 1837-R, 1866-R, and 1867-R.
Upon due consideration, it is ORDERED that respondent's motion in limine (Doc. 98), filed March 5, 2021, is denied. It is further ORDERED that the Swifts' motion in limine (Doc. 99), filed March 8, 2021, is denied. It is further ORDERED that the Swifts' oral motion to strike Exhibits 1831-R and 1832-R is denied. It is further
ORDERED that Exhibits 1756-P, 1833-R, 1834-R, 1835-R, 1836-R, 1837-R, 1866-R, and 1867-R are admitted into evidence and the objections made during trial are overruled. It is further
ORDERED that the parties shall file simultaneous opening briefs no later than September 9, 2021. It is further
ORDERED that the parties shall file simultaneous answering briefs no later than November 8, 2021.