Attorney case note
The issue
Whether Tax Court Rule 143(g)'s expert-report requirements apply to declarations filed in support of competing pretrial discovery-protective-order motions under Rule 103, and whether the Commissioner's two expert declarations should be stricken.
What the Tax Court held
Rule 143(g) does not apply to declarations submitted in support of a pretrial discovery motion. The Court denied Airbnb's motions to strike, while stating it would disregard any portions of the declarations offering legal opinions or advocacy when deciding the pending Rule 103 motions.
Key facts
- This deficiency case principally concerns a section 482 adjustment increasing Airbnb's income by $4,195,858,428 regarding resources, capabilities, and rights made available on December 31, 2013, to an Irish-law affiliate tax resident in Jersey.
- The parties filed competing, later-amended Rule 103 motions concerning protections for Airbnb source code and other technical materials, including proposed clean-room procedures.
- The Commissioner submitted two declarations from software expert Monty G. Myers in support of his protective-order motion and response to Airbnb's motion.
- Airbnb sought to strike the declarations as noncompliant expert reports under Rule 143(g), impermissible legal opinion or advocacy, and reliant on inapposite protective orders.
- The Court treated motions to strike under Rule 52 as disfavored and found no sufficient showing of prejudice.
Why this matters
The opinion draws a procedural line between trial expert-disclosure rules and pretrial discovery-motion practice. It preserves the Court's ability to consider or disregard submitted declarations without treating them as trial expert reports or resolving their ultimate admissibility.
Practical takeaway
In Rule 103 motion practice, Rule 143(g) alone does not require striking an expert declaration. Objections directed to legal conclusions, factual foundation, or relevance may instead affect the weight accorded the declaration; the Court noted that a party may submit counter-declarations or seek an evidentiary hearing.
Source
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This AI-assisted case summary is informational and is not legal advice. Consult the linked decision for the court’s complete opinion.