Jenkins v. United States

90 Fed. Cl. 585, 104 A.F.T.R.2d (RIA) 7758, 2009 U.S. Claims LEXIS 674, 2009 WL 4842796
United States Court of Federal Claims·Decided December 14, 2009·No. No. 08-50T·Published·Cited by 2 cases

Opinion

ORDER

ALLEGRA, Judge:

Pending before the court, in this tax refund case, is plaintiffs motion to compel defendant’s response to Plaintiffs First Set of Interrogatories. Defendant asserts, inter alia, that the information sought by plaintiff already has been provided or is otherwise irrelevant. For the reasons set forth below, the court DENIES plaintiffs motion.

The underlying issue in this case is whether plaintiff, Timothy L. Jenkins, is liable for a so-called “responsible officer” penalty imposed by section 6672(a) of the Internal Revenue Code of 1986 (26 U.S.C.).1 In assessing that penalty, the Internal Revenue Service (the IRS) determined that plaintiff was responsible for the failure of Dialogue Diaspora, Inc. (DDI) to pay over withheld employment taxes. The penalty was collected by levy against plaintiff. On January 24, 2008, plaintiff filed a refund suit, alleging that a third party, Gary Puckrein, was the one actually responsible for DDI’s failure to remit the taxes in question. At some point, Mr. Puck-rein entered into an offer in compromise with the IRS to settle various tax liabilities, including his liability for a “responsible officer” penalty assessed for DDI’s nonpayment of withheld employment taxes. In discovery, plaintiff sought production of Mr. Puckrein’s federal tax transcripts to determine whether plaintiffs penalty liability might be reduced by payments made by Mr. Puckrein toward the employment tax liability. Defendant refused to provide the transcripts, asserting that they contained tax return information protected by 26 U.S.C. § 6103. On October 9, 2008, defendant provided a disclosure to plaintiff under 26 U.S.C. § 6103(e)(9),2 which [587]*587stated that although Mr. Puckrein had been assessed a penalty under section 6672, his liability had been reduced to zero under his settlement with the IRS. On this same date, defendant produced to plaintiff a copy of DDI’s tax transcripts for the periods in question.

On January 30, 2009, the court discussed with the parties the possibility of defendant providing to the court, for en camera review, a copy of Mr. Puckrein’s tax transcript. On February 13, 2009, defendant filed a memorandum indicating that the court had the authority to order an en camera inspection of the tax transcript. The court did so on February 18, 2009. After reviewing the transcript, on March 16, 2009, this court issued an order finding that the contents of the transcript were irrelevant to this suit — that is, that they did not reflect any payments that would reduce the penalty at issue here.

On June 28, 2009, the day before discovery closed, plaintiff served the interrogatories that are the focus of the pending motion. One of these quoted Mr. Puckrein’s March 19, 2009, deposition testimony in which he indicated that he had paid $150,000 toward the employment tax penalty (or the underlying liability of DDI). That assertion, of course, is inconsistent with the representations previously made by defendant to plaintiff and this court; it is, for that matter, also inconsistent with Mr. Puekrein’s tax transcripts. On July 29, 2009, plaintiff filed a motion to compel responses to the June 28 interrogatories. On September 24, 2009, the court ordered defendant to provide Mr. Puckrein’s offer in compromise to the court for en camera review. Defendant filed a “Notice of Compliance” on October 15, 2009 — defendant, however, did not provide the court with the offer in compromise, which it asserted could not be found. Defendant instead provided the court with additional evidence from the IRS’ records describing the contents of the offer in compromise.

The Federal Circuit has instructed that “[questions [regarding] the scope and conduct of discovery are ... committed to the discretion of the trial court.” Florsheim Shoe Co. v. United States, 744 F.2d 787, 797 (Fed.Cir.1984). RCFC 26(b)(1), like its counterpart, Rule 26(b)(1) of the Federal Rules of Civil Procedure, permits broad discovery: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” RCFC 26(b)(1); see also Jicarilla Apache Nation v. United States, 88 Fed.Cl. 1, 5 (2009). Relevant information includes “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case,” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978), and this information “need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” RCFC 26(b)(1); see also Stovall v. United States, 86 Fed.Cl. 770, 772 (2009).

Where written interrogatories are served under RCFC 33, the responding party “must provide true, explicit, responsive, complete, and candid answers.” Lakeland Partners, L.L.C. v. United States, 88 Fed.Cl. 124, 132 (2009). Interrogatories “should be answered directly and without evasion in accordance with information that the answering party possesses after due inquiry.” Id. (quoting 8B Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice & Procedure § 2177 (2d ed.1994) (hereinafter “Wright & Miller”)). For purposes of the rules, evasive or incomplete answers are treated as a failure to answer. RCFC 37(a)(4); see also In Re Thomas Cons. Indus., Inc., 456 F.3d 719, 725 (7th Cir.2006). Of course, a respondent may object to an interrogatory, but must do so “with specificity.” RCFC 33(b)(4); see also Enron Corp. Savings Plan v. Hewitt Assocs., LLC, 258 F.R.D. 149, 159 (S.D.Tex.2009). The party propounding the interrogatories may, as is [588]*588the case here, move for an order compelling disclosure under RCFC 37(a) when an opposing party “fails” to answer an interrogatory. RCFC 37(a)(3)(B)(iii); see also Whitlow v. Martin, 259 F.R.D. 349, 353 (C.D.Ill.2009).

The party moving to compel discovery bears the burden of proving that the opposing party’s answers are incomplete. Equal Rights Ctr. v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C.2007); Anaheim Gardens v. United States, 2008 WL 2043240, at *3 (Fed.Cl. Feb.29, 2008). On the other hand, the party opposing a motion to compel has the burden of “showing its objections are valid by providing specific explanations or factual support as to how each discovery request is improper.” Anaheim Gardens, 2008 WL 2043240, at *3 (quoting Thompson v. Reg’l W. Med. Ctr., 2007 WL 3232603, at *2 (D.Neb. Oct.31, 2007)); see also Hernandez, Kroone and Assocs., Inc. v. United States, 2008 WL 4725433, at *2 (Fed.Cl. Jun.16, 2008).

With these standards firmly in mind, the court now turns to the subject interrogatories, and defendant’s responses thereto.

Plaintiffs Interrogatory No. 1 seeks a description of:

(1) Both each payment and the total of all such payments of DDI’s trust fund taxes and the trust fund recovery penalty by Mr.

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Jenkins v. United States, 90 Fed. Cl. 585, 104 A.F.T.R.2d (RIA) 7758, 2009 U.S. Claims LEXIS 674, 2009 WL 4842796 (uscfc 2009).

90 Fed. Cl. 585 (Jenkins v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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