- Exhibit 35.11.1-53 Motion to Calendar and Consolidate or In the Alternative to Continue
- Exhibit 35.11.1-54 Motion for Pretrial Conference
- Exhibit 35.11.1-55 Tax Court Rule 91(f) Motion
- Exhibit 35.11.1-56 Motion for Partial Summary Judgment
- Exhibit 35.11.1-57 Motion for Summary Judgment and Supporting Affidavit
- Exhibit 35.11.1-58 Motion for Protective Order in Opposition to Petitioner's Motion for Partial Summary Judgment
- Exhibit 35.11.1-59 Joint Motion to Submit Case Under Rule 122
- Exhibit 35.11.1-60 Motion for Entry of Decision
- Exhibit 35.11.1-61 Motion to Vacate Decision
- Exhibit 35.11.1-62 TEFRA Partnership: Motion to Dismiss for Lack of Jurisdiction Pursuant to I.R.C. § 6226 (b)(1)
- Exhibit 35.11.1-63 TEFRA Partnership: Motion to Dismiss for Lack of Jurisdiction Pursuant to I.R.C. § 6226 (b)(2) and (b)(4)
- Exhibit 35.11.1-64 TEFRA Partnership: Motion to Dismiss for Lack of Jurisdiction — TEFRA Items Only
- Exhibit 35.11.1-65 TEFRA Partnership: Motion to Dismiss for Lack of Jurisdiction and to Strike — TEFRA and Non-TEFRA Items
- Exhibit 35.11.1-66 TEFRA Partnership: Motion to Dismiss for Lack of Jurisdiction and to Strike With Respect to Additions to Tax
- Exhibit 35.11.1-67 Declaratory Judgment Case: Motion for Joinder of Additional Parties
- Exhibit 35.11.1-68 Declaratory Judgment Case: Motion to Dismiss for Lack of Jurisdiction
- Exhibit 35.11.1-69 Declaratory Judgment Case: Motion to Extend Time Within Which to Stipulate as to the Administrative Record
- Exhibit 35.11.1-70 Declaratory Judgment Case: Motion for Order to Show Cause Why Case Should Not Be Submitted on the Administrative Record as Provided in Tax Court Rule 217
- Exhibit 35.11.1-71 Notice of Proceeding Under Bankruptcy Code
- Exhibit 35.11.1-72 Motion to Consolidate for Trial, Briefing and Opinion
- Exhibit 35.11.1-73 Motion to Change Place of Trial
- Exhibit 35.11.1-74 Motion to Correct Transcript (Joint)
- Exhibit 35.11.1-75 Motion to Change Caption — (Nonjurisdictional)
- Exhibit 35.11.1-76 Motion to Substitution of Party and to Change Caption
- Exhibit 35.11.1-77 Sample Letter To Attorneys in Conflict Situations Involving Planning, Promoting or Operating a Tax Shelter
- Exhibit 35.11.1-78 Sample Letter To Attorneys in Conflict Situations Involving Multiple Representation and I.R.C. § 6015 is at Issue
- Exhibit 35.11.1-79 Conflict of Interest Situations Where Petitioner’s Attorney Is a Potential Witness
- Exhibit 35.11.1-80 Respondent's Interrogatories to Petitioner Used in Conjunction with Request for Admissions
- Exhibit 35.11.1-81 Discovery Checklist (Interrogatories, Production of Documents, Admissions Depositions, Motions to Compel)
- Exhibit 35.11.1-82 Respondent's Interrogatories to Petitioner
- Exhibit 35.11.1-83 Respondent's Request for Production of Documents
- Exhibit 35.11.1-84 Respondent's Request to Petitioner for Permission for Entry, Inspection, Measuring, and Photographing Property and Objects and Operations Thereon
- Exhibit 35.11.1-85 Respondent's Request for Admissions
- Exhibit 35.11.1-86 Motion to Review the Sufficiency of the Petitioner's Objections to Respondent's Requests for Admissions
- Exhibit 35.11.1-87 Motion to Compel Responses to Respondent's Interrogatories
- Exhibit 35.11.1-88 Motion to Compel Production of Documents
- Exhibit 35.11.1-89 Motion to Compel Entry, Inspection, Etc.
- Exhibit 35.11.1-90 Motion to Impose Sanctions
- Exhibit 35.11.1-91 Transmittal Memorandum to Manager for Service of Subpoena
- Exhibit 35.11.1-92 Letter Explaining Witness' Appearance
- Exhibit 35.11.1-93 Witness Agreement to Appear
- Exhibit 35.11.1-94 Letter to Third Party Customer in Regard to Subpoena on Financial Institution
- Exhibit 35.11.1-95 Motion to Compel Responses to Respondent's Interrogatories Enclosure: Form Motion to Quash Subpoena Served on Financial Institution
- Exhibit 35.11.1-96 Enclosure: Form Affidavit of Third Party Customer
- Exhibit 35.11.1-97 Letters to Financial Institution: Right to Financial Privacy Act — Motion to Quash Denied
- Exhibit 35.11.1-98 Letters to Financial Institution: Right to Financial Privacy Act - No Motion to Quash Filed
- Exhibit 35.11.1-99 Motion For Writ of Habeas Corpus Ad Testificandum
- Exhibit 35.11.1-100 Sample letter to Witness in Prison
- Exhibit 35.11.1-101 Expert Witness Procurement Flow Chart
- Exhibit 35.11.1-102 Expert Witness Procurement - Billing and Related Processes
- Exhibit 35.11.1-103 Obtaining Testimony of a Witness in a Foreign Country : Application for a Letter Rogatory
- Exhibit 35.11.1-104 Obtaining Testimony of a Witness in a Foreign Country: Letter Rogatory
- Exhibit 35.11.1-105 Motion for Protective Order
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| [Letterhead] | |
| Dear [name of attorney]: | |
| This office is responsible for [name of docketed case]. We are concerned that your representation of petitioners in this case may present a potential conflict of interest. | |
| [Optional Paragraph 1] | |
| It appears that you and your firm have been involved in developing and promoting the tax shelter at issue and that you drafted the opinion letter used in marketing the shelter. | |
| [Optional Paragraph 2] | |
| It appears that you have a direct financial interest in the tax shelter at issue. In addition, you drafted the opinion letter used in marketing the shelter, and you and your firm apparently solicited clients to enter into shelter agreements in return for limited legal representation in the event of a government challenge. Our purpose in writing is to bring this situation to your attention at this early stage since the Service has been faced with post-trial or post-settlement motions by investors who claimed not to have been informed of conflicting interests on the part of their attorneys prior to trial and, in some cases, that they did not authorize counsel to bind them to a settlement agreement. An examination of the American Bar Association’s Model Rules of Professional Conduct, adopted by the Tax Court in Tax Court Rule 201(a), indicates that your representation of investors in this shelter may present the appearance of a conflict. See ABA Model Rule 1.7(b). | |
| We are aware of the sensitive ethical questions presented when a possible conflict is raised by opposing counsel. The Model Rules are careful to caution against the misuse of such an objection as a technique of harassment, but provide that opposing counsel may properly raise the question where the conflict is such as clearly to call in question the fair or efficient administration of justice. Comment, Rule 1.7. We believe the fair or efficient administration of justice would be as compromised by a failure to inform investor/clients of a conflict of interest as by more active, overt actions such as delaying proceedings or impeding discovery. To avoid later claims by investors you represent that they were not fully informed of these possible conflicts, we request your assurance that they have agreed to your representation after full disclosure of the relevant facts. We would appreciate a response by [date]. We are calling this to your attention now since we would feel an obligation to advise the Court at an early stage if we believe the Court’s decisions could be subject to collateral attack at a later date. | |
| Sincerely, | |
| [Letterhead] | |
| Dear [Sir/Madam]: | |
| As you know, the above case has been calendared for trial at the Tax Court’s trial session in [place] beginning [date]. | |
| You have asserted in Docket No. [docket no.] that [spouse] is entitled to relief from joint and several liability under I.R.C. § 6015 with respect to the joint income tax returns which are also the subject of the tax liability of [name] in Docket No. [docket no.]. Pursuing innocent spouse relief on behalf of [spouse] may result in [spouse] being relieved from joint and several liability, leaving [name] solely liable for the deficiency, interest and penalties at issue. By representing both [name] and [spouse], it could appear that your representation in these cases presents a conflict of interest. In this regard, please see Rule 1.7 of the American Bar Association Model Rules of Professional Conduct, which rules have been adopted as Tax Court Rules 24(g) and 201. | |
| [Additional material may be inserted here as appropriate, depending on the facts of the case.] | |
| [Optional paragraph for an egregious conflict of interest: By bringing this matter to your attention, I am not suggesting that you have acted or are acting improperly in these cases. My only concern is to avoid the possibility of collateral attack on a decision of the Tax Court on this issue]. | |
| I request your assurance that you have consulted with [spouse] and [name] on the matter of the potential conflict and that they have agreed to your representation in these cases after this consultation. I wish to bring this sensitive matter to your attention at an early date, and before the parties engage in settlement negotiations and/or trial preparation. Please respond to this request as soon as possible. | |
| Sincerely, | |
| [Letterhead] | |||
| [Petitioner’s counsel] [Address] |
|||
| Re: | [Name] v. Commissioner Tax Court Docket No. [docket no.] |
||
| Dear [Sir/Madam]: | |||
| It is my understanding, based on the facts which appear in the file, that you had an integral involvement in the development of the transaction at issue in the above captioned case. [Set forth facts supporting this conclusion] In light of your involvement in the matters at issue in this case, we intend to call you as a witness at the trial of the case. | |||
| Rules 24(g) and 20l of the Tax Court’s Rules of Practice and Procedure govern the conduct of attorneys before the Tax Court. Rule 24(f) provides, in relevant part, " If any counsel of record … is a potential witness in a case, then such counsel must...withdraw from the case; or take whatever steps are necessary to obviate a conflict of interest or other violation of the ABA Rules of Professional Conduct, and particularly Rules 1.7, 1.8, and 3.7 thereof. The Court may inquire into the circumstances of counsel’s employment in order to deter such violations." | |||
| Model Rule 3.7 of the ABA Model Rules of Professional Conduct provides that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where the testimony relates to an uncontested issue, or the testimony relates to the nature and value of legal services rendered in the case, or disqualification would render a substantial hardship on the client. | |||
| In our opinion, you are a necessary witness and none of the above listed exceptions apply. Please let us know within ten days of the date of this letter if you intend to withdraw from representing your client at the trial of this case. | |||
| Sincerely, | |||
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| Date: | ||
| To: | [Manager], [Division] | |
| From: | [Name of Associate Area Counsel] Associate Area Counsel |
|
| Subject: | [Name] v. Commissioner Docket No. [docket no.] |
|
| Transmitted are the original and. one copy of the following subpoena(s) and subpoena(s) duces tecum for service upon witness(es) in connection with the above entitled case: | ||
| [List subpoena(s) and subpoena(s) duces tecum] | ||
| Also transmitted are Form(s) 2431, Subpoena Instructions and Questionnaire, for use by the agent who will serve the subpoena(s) and a letter to each witness requesting his or her agreement to appear when notified and Agreement to Appear forms, to be signed by each witness if he or she so agrees. The attention of the person serving the subpoena is directed to the instruction on the reverse side of Form 2431. | ||
| It will be appreciated if you will immediately effect service of the subpoena(s) and return the completed original(s) of the subpoena(s), Form 2431 and the Agreement to Appear. | ||
| Enclosures: | Subpoena(s) Forms 2431 Letter(s) to witness(es) |
|
| [Letterhead] | |||
| Re: | [Petitioner’s name] v. Commissioner Docket No. [docket no.] |
||
| Dear [Petitioner’s name]: | |||
| The above case will be called at the trial session commencing on the date and at the place shown in the subpoena served on you. At that time it is expected that the Court will fix the specific date for trial. | |||
| We want to avoid your spending unnecessary time in Court waiting for the trial to commence, but we do not know the exact day and hour which the Court will select to start the trial since several other cases are also set for trial on this session. If you will agree to be ready and respond immediately when notified of the exact date and time of trial, you will be excused from responding to the earlier return date shown on the subpoena. If you do not agree to this condition, you will be required to appear in Court on the date specified and will not be allowed to depart without leave of the Court. If you do agree, please fill out the attached Agreement to Appear and return it to the person serving the subpoena. We will try to notify you at least 24 hours in advance of the time your presence in the courtroom will be needed. Your mileage and witnesses fees will be reimbursed if you sign a claim therefor on Form 1157, which will be furnished following your appearance. | |||
| If you have any questions about this letter or the subpoena which has been served, please contact the attorney in charge of the case, [name of respondent’s attorney] at the above address. [He/she] may be reached at [telephone number]. | |||
| Sincerely, | |||
| [Name] Area Counsel |
|||
| By:________ | |||
| Agreement to Appear Re: [Petitioner’s name] v. Commissioner Docket No. [docket no.] |
||
| I, [witness’s name], hereby agree that I will be ready to appear in the United States Tax Court in response to the subpoena served on me today when notified by the [appropriate Field Counsel office], Internal Revenue Service, as to the exact date and time when my appearance is needed. | ||
| Date: ________ | ||
| Signature: ________ | ||
| My telephone number at home is ________ | ||
| My telephone number at work is ________ | ||
| My home address is ________ | ||
| My business address is ________ | ||
| ________ | ||
| [Signature of person receiving agreement] | ||
| [Letterhead] | |||
| [Name & address of customer] | |||
| Dear [Petitioner’s name]: | |||
| Re: | [Petitioner’s name] v. Commissioner Docket No. [docket no.] |
||
| The above-entitled case is set for hearing before the United States Tax Court at a session commencing in [city, state], on [date of calendar call]. In connection with the trial of this case, this office is serving a subpoena duces tecum on [name of financial institution], calling for it to furnish certain records and information concerning your transactions with [name of financial institution], which we believe are relevant to matters before the Tax Court. A copy of this subpoena duces tecum is attached hereto. | |||
| Records and information concerning your transactions which are held by the financial institution named in the attached subpoena duces tecum are being sought by this office in accordance with the Right to Financial Privacy Act of 1978 for the following purpose: | |||
| [Set forth purpose for subpoenaing the customer records] | |||
| If you desire that such records or information not be made available, you must: | |||
-
Fill out the accompanying Motion paper and sworn statement (affidavit) or write one of your own, stating that you are the customer whose records are being requested by the Government and either giving the reasons you believe that the records are not relevant to the legitimate law enforcement inquiry stated in this notice or any other legal basis for objecting to the release of the records.
-
File the Motion and statement by mailing or delivering them to the Clerk of the United States Tax Court, 400 Second Street, N.W., Washington, D.C. 20217.
-
Serve the Government authority requesting the records by mailing or delivering a copy of your Motion and statement to the undersigned at [address].
-
Be prepared to come to Court and present your position in further detail.
| You do not need to have a lawyer although you may wish to employ one to represent you and protect your rights. | |||
| If you do not follow the above procedures, upon the expiration of [ten days from the date of service or 14 days from the date of mailing of this notice], the records or information requested therein will be made available. These records may be transferred to other Government authorities for legitimate law enforcement inquiries, in which event you will be notified after the transfer. | |||
| This case before the United States Tax Court is being handled by [name of Field attorney] of this office. If you have any questions in connection with this matter, please call [phone number], or write the undersigned at the address shown above. | |||
| Sincerely, | |||
| Area Counsel | |||
| By: ________ | |||
| Enclosures: (1)Copy of subpoena duces tecum (2)Form Motion to Quash to be completed by you (3)Form Affidavit to be completed by you |
|||
| ___________________________________ | |||
| Note: This procedure is not required if the customer is a corporation, trust, or partnership of six or more individuals. See 12 U.S.C. §§ 3401(4), 3401(5). | |||
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| [Letterhead] | ||||
| Re: | [Petitioner’s name] v. Commissioner Docket No. [docket no.] |
|||
| [Name and address of financial institution] | ||||
| Dear [Name]: | ||||
| On [date], this office served a subpoena duces tecum calling for a representative of your organization to appear before the United States Tax Court on [date] and produce certain records and information on [customer name], a customer of your organization within the meaning of the Right to Financial Privacy Act of 1978. This is to certify that the Commissioner of Internal Revenue has complied with the applicable provisions of section 1107 of the Act. | ||||
| [Customer name]’s Motion to Quash the subpoena duces tecum served on you has been denied by the Tax Court. The government has complied with the provisions of section 1110 of the Act concerning a customer challenge. Therefore, it is appropriate for you to respond to the subpoena duces tecum and bring the requested records and information to the hearing, which is presently scheduled for [date]. | ||||
| Sincerely, | ||||
| Area Counsel | ||||