K & M La Botica Pharmacy, Inc. et al. - Page 6




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          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:                    






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