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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I was looking through some of your blog posts on this internet site and I conceive this web site is rattling informative ! Keep on posting . dfkcfdkdgbekdffe

  2. Don't believe me, listen to Pacino: https://www.youtube.com/watch?v=z6bC9w9cH-M

  3. Law school is social control the goal to produce a social product. As such it began after the Revolution and has nearly ruined us to this day: "“Scarcely any political question arises in the United States which is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. As most public men [i.e., politicians] are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate.” ? Alexis de Tocqueville, Democracy in America

  4. Attorney? Really? Or is it former attorney? Status with the Ind St Ct? Status with federal court, with SCOTUS? This is a legal newspaper, or should I look elsewhere?

  5. Once again Indiana has not only shown what little respect it has for animals, but how little respect it has for the welfare of the citizens of the state. Dumping manure in a pond will most certainly pollute the environment and ground water. Who thought of this spiffy plan? No doubt the livestock industry. So all the citizens of Indiana have to suffer pollution for the gain of a few livestock producers who are only concerned about their own profits at the expense of everyone else who lives in this State. Shame on the Environmental Rules Board!

ADVERTISEMENT