IRS Must Sign Answers to Interrogatories Under Oath

July 19, 2013
Interrogatories under oathTax Court: IRS Must Sign Interrogatories Under Oath, Just Like Taxpayers Swanson-Flosystems Co. v. Commissioner, No. 27975-11 (July 18, 2013):

On July 3, 2013, petitioner filed a motion “for an order compelling Respondent to provide the signed oath required by T.C. Rule 71(c) in answering Petitioner’s First Set of Interrogatories to Respondent.” On July 16, 2013, respondent filed a response, to which he attached his responses to the interrogatories. The interrogatory responses end with a paragraph 11 that reads:

11. Pursuant to T.C. Rule 71 all of the above answers are made in good faith and are as complete as possible after a reasonable inquiry of the readily obtainable information.

Paragraph 11 is followed by a conventional signature block. Respondent asserts that the interrogatory responses “are signed in conformance with T.C. Rules 71(a) and (c).”

Rule 71(c) provides, “Each interrogatory shall be answered separately and fully under oath”. (Pursuant to 28 U.S.C. sec. 1746 this requirement may be satisfied by an “unsworn declaration” made under penalty of perjury.) Respondent’s interrogatory responses were not made under oath (i.e., they are not accompanied by any notarization or similar document indicating that they were sworn before someone authorized to take an oath), and they were not made under penalty of perjury. The responses therefore do not comply with Rule 71(c). It is therefore.

ORDERED that petitioner’s motion to compel filed July 3, 2013, is granted.

It is further ORDERED that, no later than July 31, 2013, respondent
shall serve on petitioner responses to interrogatories that are made
“under oath” (or pursuant to 28 U.S.C. sec. 1746).

(Signed) David Gustafson
Judge

Thanks to  http://www.myprivateaudio.com/ for the heads up on this ruling.

It will be interesting to see exactly who will be signing interrogatories under penalty of perjury. Rule 71(c) also says this: “The answers are to be signed by the person making them and the objections shall be signed by the party or the party’s counsel.” (emphasis mine)

The way I read that it means that if the questions are answered, which they rarely are, the Respondent himself has to sign them under POP, but if there are only objections, which is the usual case for difficult questions, then Respondent’s attorney may sign them.

I have never seen answers to interrogatories by the government in Tax Court signed by anyone at all under oath. I have also seen similar motions to the one granted above denied without comment. It may be good to keep in mind that attorney’s cannot testify.

Lysander

Lysander Venible is the author of "On Your Own in Tax Court," a book about how to save your shirt in U.S. tax court. He has been engaged with the Service for over 10 years both administratively and in tax court.

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Lysander is not an attorney and it is not his intent to offer legal advice.
Lysander

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