Richard L. Bennett - Page 2

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                  also relying on Fed. R. Civ. P. 26(b)(4)(B), argues                                   
                  that expert reports should not be discoverable under                                  
                  this Court's Rules of Practice and Procedure.                                         
                        Held:  In the context of this case, P is not                                    
                  seeking to "go behind the notice of deficiency" and is                                
                  entitled to discover and obtain a copy of Y's report.                                 
                  James W. Childs and Roxann T. Conrad, for petitioner.                                 
                  Carol A. Szczepanik and Dennis G. Driscoll, for respondent.                           

                                        MEMORANDUM OPINION                                              
                  GERBER, Judge:  We must decide:  (1) Whether, in a pretrial                           
            discovery setting, it was appropriate for respondent to refuse to                           
            produce a document on the ground that petitioner is not entitled                            
            to go behind the notice of deficiency determination, and (2)                                
            whether petitioner is entitled to discover a pre-deficiency-                                
            notice report of respondent’s expert who will not be called as a                            
            witness.                                                                                    
            Background                                                                                  
                  Petitioner moved to compel production of an independent                               
            expert's report obtained by respondent during the examination                               
            process.  On his 1990 and 1991 Federal income tax returns,                                  
            petitioner claimed deductions in the amounts of $76,000 and                                 
            $160,000, respectively, for the donation of 236 films to the                                
            Institute for the Advanced Study of Human Sexuality of the Exodus                           
            Trust, a charitable organization.  Seventy-six films were donated                           
            in 1990 and 160 films in 1991.  The films are 8-millimeter,                                 
            silent, black and white films which contain erotic material                                 





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