November 25, 2002
On October 8, 2002, a hearing was held before the Court to determine whether the Respondents should be required to comply with and obey summonses served on them by the Internal Revenue Service ("IRS"). At the hearing the Court enforced the summonses and ordered the parties to confer in an attempt to agree on a mutually convenient date for the Respondents to produce the documents. The Memorandum Opinion and Order issued on October 11, 2002 set forth the oral rulings the Court made during the hearing.
The parties are unable to agree on a date for the Respondents to produce the documents and provide testimony to the IRS. On October 22 the United States filed a motion for an Order setting a date. (Doc. 20.) On November 4, 2002, the Respondents filed an opposition to the motion. (Doc. 24.) Because the parties cannot agree, the Court will set a date. In a letter dated October 18, 2002 from Kerwin Miller to attorney Donald Dowie, Respondents offered December 5, 2002 as a date to meet with the IRS agent. (Doc. 29, Exhibit 3.) Accordingly, the Court will set December 5 as the date for the Respondents to produce the documents to the IRS and to provide the testimony necessary to authenticate the Trust documents.
Respondents also filed an opposition to the October 11, 2002 Memorandum Opinion and Order (Doc. 27) and an Opposition to the United States' proposed Order (Doc. 25).
Also pending before the Court is the United States' Motion to Amend or for Clarification of Order dated October 11, 2002. (Doc. 21.) The government asks that the Order reflect that Kerwin Miller, in his capacity as trustee, is required to provide testimony in order to authenticate documents that are produced on behalf of the Trust in response to the summons. Respondents oppose this motion. (Doc. 26.) Kerwin Miller will be required to provide testimony only to identify and authenticate the documents he is required to produce as the trustee for the Trust. See Braswell v. United States, 487 U.S. 99 (1988); United States v. Harrison, 653 F.2d 359 (8th Cir. 1981). Accordingly,
IT IS ORDERED:
(1) that the United States' Motion for Entry of Order Setting Date for Respondents to Produce Documents and for Kerwin Miller to Provide Testimony in his Capacity as Trustee Authenticating Documents is granted (Doc. 19.);
(2) that the United States' Motion to Amend or For Clarification of Order Dated October 11, 2002 is granted to the extent that Kerwin Miller will be required to provide testimony only to identify and authenticate the documents he is required to produce as the trustee for the Trust (Doc. 21); and
(3) that Respondents' shall produce documents to IRS Revenue Agent Griff Anderson, and Kerwin Miller as trustee shall give testimony authenticating documents produced by the Trust, pursuant to the summonses issued to Kerwin J. Miller, Mona Miller, and the Trust, respectively, on July 25, 2001, and the summons issued to the Trust on August 16, 2001 at
Internal Revenue Service 2500 W. 49th St., Room 104 Sioux Falls, SD 57105-6556