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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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