ILNews

Gambler scores partial victory before Tax Court

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. My name is joan, I live in United kingdom..I am here to say a big thank you to Dr odun for helping me and making me smile again, after reading a lot of testimonies about Dr odun i wrote him and told him to help me restore my marriage as my home have been scattered for 3yrs now, He replied my email and told me to send my pic and my husband pic and some other things, which i did and he said he will be done in 48hrs, with hope i slept and on the 3rd day Nathaniel called me and asked if i could pack my things to his place and forgive him, i was shocked and this is how dr odun helped me in restoring my. home Contact him: drodunhealinghome@aol.com or his website on drodunhealinghome.webs.com

  2. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  3. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  4. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

  5. Baer filed with the U.S. Court of Appeals Seventh Circuit on April 30 2015. When will this be decided? How many more appeals does this guy have? Unbelievable this is dragging on like this.

ADVERTISEMENT