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determinations, and among the issues we must decide is petitioner
Deborah E. Moore’s (Moore’s) membership interest during the years
in issue in the Surgery Center of Georgia, LLC (Surgery Center),
a Georgia limited liability company. In support of their claim
that, prior to 2000, Moore’s interest in Surgery Center did not
exceed 2 percent, petitioners offer two exhibits (collectively,
the exhibits), marked by the Court as Exhibits 103-P and 104-P,
and the anticipated testimony of attorney James P. Kelly (Kelly),
evidenced by his affidavit (the Kelly affidavit), dated June 14,
2004. Both the exhibits and the Kelly affidavit have been placed
under seal. We must resolve a claim of privilege raised by
United Surgical Partners International, Inc., a Delaware
Corporation (International), on behalf of Surgery Center, now a
subsidiary of International’s, with respect to the exhibits and
the anticipated testimony of Kelly.
Background
By order dated May 20, 2004 (the order), we set forth the
procedures for International to follow in raising any claim of
privilege. Pursuant to the order and Rule 103, Tax Court Rules
of Practice and Procedure, International (an affected person,
within the meaning of the Rule) moves (the motion) that the Court
enter a protective order shielding Surgery Center from intrusion
upon privileged communications between Surgery Center and Kelly,
Surgery Center’s counsel. Specifically, International asks the
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