- 6 - to permit a consensual deposition. Specifically, Rule 75(b) sets forth the standards controlling the availability of this discovery device, as follows: The taking of a deposition of a nonparty witness under this Rule is an extraordinary method of discovery and may be used only where a nonparty witness can give testimony or possesses documents or things which are discoverable within the meaning of Rule 70(b) [any matter which is not privileged and which is relevant to the subject matter involved in the pending case] and where such testimony, documents, or things practicably cannot be obtained through informal consultation or communication (Rule 70(a)(1)) or by a deposition taken with consent of the parties (Rule 74). If such requirements are satisfied, then a deposition may be taken under this Rule, for example, where a party is a member of a partnership and an issue in the case involves an adjustment with respect to such partnership, or a party is a shareholder of an electing small business corporation (as described in Code Section 1371(b) prior to the enactment of the Subchapter S Revision Act of 1982), and an issue in the case involves an adjustment with respect to such corporation. * * * The comments accompanying promulgation of the Rule similarly reiterate that: The new Rule 75 provides an extraordinary method of discovery which may be used only where the information sought cannot be obtained by informal consultation or by other discovery methods. For example, if the other requirements of the Rule are satisfied, a deposition might be taken under the Rule in a case involving the tax liability of a limited partner who does not have access to the books and records of the partnership, or where a bank or other person possesses records which are relevant to the tax liability of a party and are otherwise unavailable. [79 T.C. 1141-1142 (1982).] In the instant proceeding, petitioners assert that they are entitled to depose Mr. Darwish on the following grounds:Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: May 25, 2011