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sought to take the depositions of two third-party witnesses. The
two witnesses were 62 and 69 years of age, respectively. Upon
review of the application, we explained that the procedure under
Rule 82 was not intended to be used as a discovery device. See
Ash v. Cort, 512 F.2d 909, 911 (3d Cir. 1975). We also stated
that, where an application under Rule 82 suggests that the
proposed deposition might be used for discovery purposes, our
decision whether to grant such an application will turn on a
weighing of the discovery aspects of the deposition against the
applicant’s need to perpetuate testimony. See Masek v.
Commissioner, 91 T.C. at 1100. In denying the application in
that case, we concluded that the proposed depositions of third-
party witnesses reflected “more than a trace of discovery” and
the applicant/taxpayer had not shown (through medical records or
otherwise) that the proposed deponents’ testimony would likely be
lost before trial. Id. at 1100-1101.
In our Supplemental Opinion, Masek v. Commissioner, 92 T.C.
814 (1989), we denied the applicant/taxpayer’s motion to
reconsider our earlier opinion, stating that our focus under Rule
82 “is directed to the risk that the testimony will be
unavailable when a trial commences, and the applicant must
establish that that risk is significant.” Id. at 815.
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