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flowthrough items, and that it would not be a problem to limit the scope of a Form 872 to those items.

However, petitioner's assertion about what Mr. Feldman was told by an employee of respondent's Manhattan Office was never established in the record by the introduction of admissible evidence. Moreover, petitioner's bare assertion on brief, standing without admissible evidence, cannot serve to establish that there was a false representation made by the employee of respondent's Manhattan Office. 11 Rule 143(b).

Petitioner next contends that respondent's February 1982 letter, enclosing the first consent form, either (1) contained a false representation regarding the contents of the first consent form, or (2) constituted a misleading silence because that letter did not state explicitly that the first consent form, enclosed with that letter, did not conform with the terms to which Mr. Feldman agreed during his first telephone conversation with an employee of the Manhattan Office.

First, it is clear that the February 1982 letter did not contain a false representation concerning the scope of the restrictions contained in the first consent form. That letter did state that “The above-named entity(s) return i.e., Churchill's return) is under audit consideration," and that “certain adjustments may be proposed to the entity(s) return which may affect your individual return for Year(s) 1978." The letter also stated, “In order to allow time for adequate consideration of your case in conjunction with the audit of the entity(s) [i.e., Churchill), we request that you sign the enclosed consent, Form 872/872A." Although this quoted language does suggest that respondent's Manhattan Office was concerned about Churchill flowthrough items,12 the letter nowhere represented that the first consent form was limited in scope to those items. Thus, the letter contained no false representations.13

11 Petitioner argues that since respondent failed to call the employee of respondent's Manhattan Office as a witness to testify in the trial of the instant case, we should infer that such employee's testimony would have been unfavorable to respondent. Petitioner cites Witchita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158 (1946), affd. 162 F.2d 513 (10th Cir. 1947), in support of her argument. However, petitioner's reliance on Witchita is misplaced since it is petitioner who bears the burden of proof. See Blum v. Commissioner, 59 T.C. 436, 440-441 (1972); Pollack v. Commissioner, 47 T.C. 92, 108 (1966), affd. 392 F.2d 409 (5th Cir. 1968). See also Adler v. Commissioner, 85 T.C. 535, 540-541 (1985).

Moreover, petitioner has not even presented us with any evidence as to the name of the employee; presumably petitioner also did not apprise respondent of the employee's name.

12 In fact, respondent was concerned about Schedule C deductions, not Churchill flowthrough items, as evidenced by the testimony of respondent's witness, Mr. Marcos. Mr. Marcos was the revenue agent in respondent's Newark Office who audited the Churchill “promotion."

Petitioner also cannot prevail on her “misleading silence" argument. That argument would require a finding by this Court that an employee of respondent's Manhattan Office made a representation to Mr. Feldman that the first consent form would be limited in scope to Churchill flowthrough items. As we have already noted, there is no admissible evidence in the record to prove the details of the employee's statements to Mr. Feldman. Therefore, we find that the letter does not constitute a misleading silence.

Since petitioner has failed to prove that there was a false representation or misleading silence, the doctrine of equitable estoppel cannot be applied in the instant case. Respondent therefore is not estopped from relying upon the first consent form signed by petitioner. 14

To reflect the foregoing,


13We also note that the November 1981 letter that accompanied the unrestricted Form 872-A contained the same terms as the February 1982 letter. Thus, it should have been clear to petitioner that the letters were not describing the scope of the consent forms.

14 Although we hold that petitioner has not proved the existence of a false representation or misleading silence, we do not suggest that other conditions that must be satisfied in order to invoke the doctrine of equitable estoppel have been satisfied in this case. Assuming arguendo that the employee of respondent's Manhattan Office did make the statement petitioner alleges was made and that such statement was a misrepresentation of fact, as opposed to a representation of law or an opinion (see Lignos v. United States, 439 F.2d 1365, 1368 (2d Cir. 1971)), it is then required that any reliance by petitioner on such statement be reasonable (Hudock v. Commissioner, 65 T.C. 351, 363 (1975)). Such reliance would not have been reasonable in the instant case, since signing the first consent form under the circumstances of the instant case would be negligent conduct. It is clear that petitioner either did not read the consent form she signed, or that she did not understand the form's unambiguous, albeit technical, language. If the latter was the case, petitioner was negligent for not having someone other than Mr. Feldman review the document while Mr. Feldman was on vacation-in the former situation, petitioner clearly would have been negligent. Cf. Gaskin v. Stumm Handel GmbH, 390 F. Supp. 361, 367-368 (S.D.N.Y. 1975); 1 S. Williston, Contracts, sec. 35 n. 1 (3d ed. 1957).

[blocks in formation]

Petitioners seek to depose two individuals to perpetuate testimony in anticipation of filing a petition with this Court pursuant to Rule 82. The prospective deponents are neither advanced in years nor threatened by illness or infirmity. Held, Rule 82 requires that an applicant for a deposition to perpetuate testimony show that the testimony is in danger of being lost before trial.

C. William Bailey, for the petitioners.
Blake W. Ferguson, for the respondent.


WRIGHT, Judge: This case is before the Court on petitioners' Application For Order To Take Depositions Before Commencement of Case, pursuant to Rule 82,1 filed October 9, 1987. A hearing on this matter was held December 7, 1987, at a trial session of this Court in Seattle, Washington. Argument was presented by counsel for both parties and, upon the conclusion of the hearing, the matter was taken under advisement.

Petitioners seek to depose Drs. Kenneth Ray Wilske and James Barry MacLean, the attending physicians (the physicians) of one William G. Reed (the testator), in order to preserve their testimony for use in the event that respondent determines that certain testamentary transfers provided for in the testator's current will constitute generationskipping transfers within the meaning of section 2601 et seq. If deposed, the physicians would testify concerning their expert evaluations of the mental state and testamentary capacity of the testator while he was under their care. Petitioners maintain that the testimony of the two physicians as preserved by deposition would provide evidence to enable the estate to take advantage of the exception to the

Unless otherwise indicated, all section references are to the Internal Revenue Code of 1986 as amended and in effect during the years in issue. All Rule references are to the Tax Court Rules of Practice and Procedure.

generation-skipping tax for testators who lacked testamentary capacity on September 25, 1985, and October 22, 1986.2 Petitioners represent the heirs and beneficiaries of the testator's will.

Petitioners acknowledge that the application has been filed well before the underlying conflict will ripen. Specifically, before the case is justiciable, the testator must die, an estate tax return must be filed, and a deficiency must be determined by respondent. Petitioners conceded that respondent's agents might fail to audit the estate tax return when it is eventually filed, or, if audited, the question of the generation-skipping transfers might escape respondent's attention altogether. Thus, the depositions which petitioners seek would preserve testimony for a proceeding which might never occur.

Respondent objects to the application on the grounds that petitioners have failed to show that they are, or expect to be, a party to a case cognizable in this Court and that the proposed deponents will be unavailable to testify at trial. Respondent maintains that petitioners must satisfy both of these tests under Rule 82 before the deposition can be ordered. Because the physicians are middle aged and apparently in good health, respondent urges us to conclude that they will be available to testify in person at trial and that the taking of depositions is at this time unwarranted. Respondent also contends that petitioners' expectations of becoming a party to a case cognizable to this Court are so remote as to fail to satisfy the requirements under Rule 82.

Rule 82 allows an applicant to take a deposition before the commencement of the case “to perpetuate his own testimony or that of another person or to preserve any document or thing regarding any matter that may be cognizable in this Court.” Rule 82 further provides that “If the Court is satisfied that the perpetuation of the testimony or the preservation of the document or thing may prevent a failure or delay of justice, it will make an order authorizing the deposition and including such other terms and condi

?The application listed both dates because at the time of filing the law was unclear. The date was determined under the final version of the Technical Corrections Bill of 1987 to be Sept. 25, 1985.

tions as it may deem appropriate consistently with these Rules."

Our Rule 82 is derived from rule 27(a) of the Federal Rules of Civil Procedure. Note to Rule 82, 60 T.C. 1111. Thus, we may consult the history of rule 27(a), Fed. R. Civ. P., and the authorities interpreting such rule when considering the interpretation of Rule 82. Rule 1(a); Estate of Jephson v. Commissioner, 81 T.C. 999, 1000-1001 (1983); Allen v. Commissioner, 71 T.C. 577, 579 (1979).

We have opined on the appropriate application of Rule 82 in Gale East, Inc. v. Commissioner, T.C. Memo. 1985-80, wherein we reviewed an application under Rule 82 which requested an order to take the deposition of a 72-year-old man.3 Although the proposed deponent suffered from a respiratory ailment, we determined that his failure to seek medical attention indicated that his condition was not serious. Relying on Ash v. Cort, 512 F.2d 909 (3d Cir. 1975), we held that an order to take depositions was unjustified because the applicant had failed to demonstrate that the deponent would be unavailable for trial.

Almost all of the cases interpreting rule 27(a), Fed. R. Civ. P., or Rule 82, require the applicant to show that the deponent is likely to be unavailable to testify at trial. Frequently the proposed deponent is advanced in years. See Texaco, Inc. V. Borda, 383 F.2d 607 (3d Cir. 1967); DeWagenknecht v. Stinnes, 250 F.2d 414 (D.C. Cir. 1957). In Martin v. Reynolds Metals Corp., 297 F.2d 49 (9th Cir. 1961), the proposed depositions concerned evidence which the opposing party was actively trying to hide from the applicant.

The instant application presents none of the urgency and immediacy of these other cases. The proposed deponents are middle-aged and petitioners have not alleged that they suffer from any imminent threat of harm or illness. To support their need for the depositions, petitioners point only to the possibility that the physicians may move away and to the probability that their recollections will weaken and diminish over time. While both of these occurrences would

'In that case, a 30-day letter had been issued and the controversy was presently before a hearing officer of the Appellate Division, Internal Revenue Service. No notice of deficiency had been issued, nor had a petition en filed in the Tax Court.

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