## Facts

- The IRS issued notices of deficiency to Branerton Corporation and to Jack and Anne Lindner, asserting multiple tax adjustments.
- The taxpayers petitioned the United States Tax Court to contest the deficiencies; the Commissioner answered.
- New Tax Court Rules of Practice and Procedure became effective January 1, 1974.
- On January 2, 1974, taxpayers served detailed and extensive written interrogatories on the Commissioner under Rule 71.
- Taxpayers served the interrogatories without first seeking informal consultation or communication with opposing counsel.
- The Commissioner stated willingness to confer informally at a mutually convenient time, but taxpayers’ counsel had not requested an informal conference.
- The Commissioner moved under Rule 103(a)(2) for a protective order to defer responding to the interrogatories.
- The court addressed only this discovery-management dispute, not the merits of the asserted deficiencies.

## Issues

1. Whether the court should issue a protective order deferring responses to interrogatories when the requesting party has not first attempted informal consultation or communication as contemplated by Tax Court Rule 70(a)(1).
2. Whether Rule 70(a)(1)’s expectation of informal discovery efforts can be enforced through a protective order under Rule 103(a)(2).

## Decision

- The Tax Court granted the Commissioner’s motion for a protective order for a reasonable period of time.
- The court directed the parties to attempt to attain discovery objectives through informal consultation or communication before using formal discovery procedures.
- The court deferred, rather than barred, interrogatories, leaving formal discovery available if informal efforts did not resolve information needs.

## Legal Principles

- Tax Court Rule 70(a)(1) reflects the court’s expectation that parties will first attempt to accomplish discovery objectives through informal consultation or communication before resorting to formal discovery tools.
- A party’s immediate use of extensive interrogatories, without any prior informal effort, is inconsistent with Rule 70(a)(1)’s expectation.
- Under Rule 103(a)(2), the Tax Court may manage discovery and prevent undue burden by issuing protective orders that defer or limit discovery until appropriate preliminary steps occur.
- The court may condition the timing of formal discovery on a meaningful, good-faith attempt to exchange information informally.

## Conclusion

The Tax Court enforced its informal-first discovery policy by granting a protective order that postponed responses to extensive interrogatories until the parties made a good-faith effort to obtain information through informal consultation or communication, while preserving the ability to use formal discovery if needed afterward.


Branerton Corp. v. Commissioner, 61 T.C. 691 (1974)