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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

ADVERTISEMENT