IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
February 23, 2012
MARSHALL D. KATZMAN, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Magistrate Judge Cole
MEMORANDUM OPINION AND ORDER
The government has objected to Requests to Admit 1 and 2.*fn1
Request number 1 asks that the government admit that "there
is no United States Tax Court opinion or United States district court
opinion that concludes that The Plan (defined as the
death-benefit-only welfare benefit plan implemented through the United
Employee Benefit Fund) is an abusive tax shelter." Request number 2
asks that the government admit that "IRS Notice 2003-24 is the
earliest authority supporting the position that The Plan is an abusive
tax shelter." Mr. Katzman has moved to deem admitted the Requests to
Admit. Neither his Motion nor his Reply Memorandum cites a single case
in support of the requested relief. The Motion merely posits that the
Requests are "proper because they call for 'facts, the application of
law to fact, or opinions about either....'"
Rule 36, Federal Rules of Civil Procedure, is intended to allow "parties to narrow the issues to be resolved at trial by effectively identifying and eliminating those matters on which the parties agree." United States v. Kasuboski, 834 F.2d 1345 (7th Cir.1987). See also 7 Moore's Federal Practice § 36.02 (3d ed. 2000) ("Because Rule 36 was not designed to elicit information, to obtain discovery of the existence of facts, or obtain production of documents, requests for admission should not be used as a method of discovery for those purposes."); Stallings-Daniel v. The Northern Trust Co., 2002 WL 424629, at * 1 (N.D.Ill.2002). But compare Bieganek v. Wilson, 110 F.R.D. 77, 77-78 (N.D.Ill. 1986)(Lefkow, J.).*fn2
Properly used, requests to admit serve the expedient purpose of eliminating the necessity of proving essentially undisputed issues of fact. See Donovan v. Carls Drug Co., Inc., 703 F.2d 650, 652 (2d Cir.1983)(Rule 36 admissions may narrow issues and speed the resolution of claims); Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686, 688 (2d Cir.1966); Yahaya v. Hua, 1989 WL 214481, at *6 (S.D.N.Y. 1989); State of Vermont v. Staco, Inc., 684 F.Supp. 822, 829 (D.Vt. 1988); Thalheim v. Eberheim, 124 F.R.D. 34, 35 (D.Conn.1988). "'Rule 36 should not be used unless the statement of fact sought to be admitted is phrased so that it can be admitted or denied without explanation.'" United Coal Co. v. Powell Construction Co., 839 F.2d 958, 968 (3d Cir.1988). Furthermore, while requests to admit are proper to establish facts or the application of law to facts, they may not be used to establish a legal conclusion. See 7 James W. Moore, Moore's Federal Practice § 36.10 (3d ed.2006);*fn3 see, e.g., Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., Inc., 130 F.R.D. 92, 96 (N.D.Ill. 1990) (request for admission that patent and claim is valid improperly seeks legal conclusion).
Notwithstanding the plaintiff's contrary contention, the Requests essentially seek legal conclusions. No matter how tendentiously the plaintiff may describe Request 1, it simply does not ask for an admission of an essentially undisputed fact -- such as that the tax division is part of the Department of Justice or the President lives on Pennsylvania Avenue. Rather, admitting that "there is no United States Tax Court opinion or United States district court opinion that concludes that The Plan (defined as the death-benefit-only welfare benefit plan implemented through the United Employee Benefit Fund) is an abusive tax shelter" would require a complicated legal analysis of every tax shelter opinion at a minimum. The same difficulty attends Request 2. In order to admit that "IRS Notice 2003-24 is the earliest authority supporting the position that The Plan is an abusive tax shelter" every IRS document that bears upon similar tax shelters would be required to be reviewed and analyzed to ascertain whether it impacted the Plan. In short, Requests 1 and 2 are the antithesis of appropriate requests to admit.
The Reply brief asks that I take judicial notice that an IRS Notice does not have the force and effect of law and will not bind a court of record. (Reply at 2). The request is triply deficient. First, the Reply cites neither Rule 201, Federal Rules of Evidence, nor a case affirmatively supporting the request, and thus the point is waived under the familiar and oft-cited principle that skeletal, perfunctory and unsupported presentations will not be considered. See e.g. Clarett v. Roberts, 657 F.3d 644, 674 (7th Cir. 2011); Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011);United States Myrick v. Aramark Corp, 2004 WL 906176, 6 (N.D.Ill. 2004)(Lefkow, J.).
Second, the request comes in the Reply brief and thus is too late: "A reply brief is for replying" not for raising essentially new matter that could have been advanced in the opening brief. Hussein v. Oshkosh Motor Truck Company, 816 F.2d 348, 360 (7th Cir. 1987) (Posner, J., concurring); Dexia Credit Local v. Rogan, 629 F.3d 612, 625 (7th Cir. 2010); United States v. Boyle, 484 F.3d 943, 946 (7th Cir. 2007); United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006);Bodenstab v. County of Cook, 569 F.3d 657, 658 (7th Cir. 2009).
Finally, Rule 201 deals with judicial notice of adjudicative facts, not with propositions of law. The plaintiff does not need Rule 201 or any other rule of evidence to establish the propositions of law that he contends are supported by Commissioner v. Schleier, 515 U.S. 323, 336 n.8 (1995); Spiegelman v. Commissioner, 102 T.C. 394, 405 (1994); and Newberry v. Commissioner, 76 T.C. 441, 445 (1981). These cases either sustain his position or they do not. Rule 201 has nothing to do with the answer to that inquiry and would be improperly applied were it used to supplant the analysis.
UNITED STATES MAGISTRATE JUDGE