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Gambler scores partial victory before Tax Court

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The Indiana Tax Court Thursday granted an alleged professional gambler’s motion to compel the Department of State Revenue to comply with nearly all of his discovery requests in his quest to deduct certain business expenses.

The department audited Nick Popovich in 2007 for the 2002 through 2004 tax years, explaining that because he was not a professional gambler, he wasn’t entitled to deduct gambling losses as business expenses and other certain business expense deductions.

In his appeal to the Tax Court, Nick Popovich v. Indiana Department of State Revenue, 49T10-1010-TA-53, Popovich served the department with discovery requests. At issue are 53 of his discovery requests that the department sought to protect from disclosure through a protective order. The DOR claimed the information was confidential under I.C. 6-8.1-7-1 or protected by the work-product, attorney-client and deliberative process privileges.

The department argued that Popovich’s requests fail to address the sole issue in this case – whether Popovich was a professional gambler. Popovich, however, claimed that the information and documents he seeks are discoverable because all of the department’s objections to disclosure lack merit. The Tax Court agreed with Popovich with one exception – interrogatory No. 4. It seeks the internal documentation and communications between DOR employees and legal counsel. Judge Martha Wentworth sustained the department’s objections to disclosing this under the work-product and attorney-client privileges only to the extent that the DOR identifies the communications with enough specificity for the parties to determine that they are indeed work-product or attorney-client communications.

Wentworth found that the work-product and attorney-client privileges don’t preclude disclosure in response to the rest of Popovich’s discovery requests. She also rejected the DOR’s argument that Indiana recognizes a deliberative process privilege applicable to the discovery rules. She said it’s up to the Legislature to elevate public policy regarding the protection of deliberative processes into a privilege.

The department must fully respond to his discovery requests within 45 days.

In a separate order in the same matter, Wentworth denied Popovich’s second motion to compel filed after the DOR did not bring original documents to a deposition.

Indiana Trial Rule 26(F) requires a party seeking to compel discovery to attempt to resolve the discovery dispute before seeking court intervention and to document its attempts in the motion. Popovich did not provide the required showing in his motion to meet the rule’s requirements, Wentworth found. He did not make a reasonable effort to resolve the discovery dispute before filing this motion to compel.
 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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