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American Bar Association
A Practitioner's Guide to Tax Evidence: A Primer on the Federal Rules of Evidence As Applied by the Tax Court / Edition 2

A Practitioner's Guide to Tax Evidence: A Primer on the Federal Rules of Evidence As Applied by the Tax Court / Edition 2

by Joni LarsonJoni Larson


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A must-read for anyone preparing for trial before the U.S. Tax Court, the Second Edition of A Practitioner’s Guide to Tax Evidence: A Primer on the Federal Rules of Evidence As Applied by the Tax Court takes the reader step-by-step through the Federal Rules of Evidence as applied by the Tax Court and brings coverage of Tax Court opinions current through early 2017. This compilation results in an easy-to-follow collection of cases to support or guide a practitioner facing an evidentiary problem before the Tax Court. New material in the Second Edition includes:• Information as to why an appellate court reversed the Tax Court’s evidentiary decision (and, where applicable, why it affirmed the Tax Court’s decision).• Information about splits of authority in the appellate courts regarding evidentiary issues.• Significantly more examples of how the Tax Court has applied the rules of evidence.The condensed and well-organized sections allow one to easily spot a particular issue or the Evidentiary Rule at hand and to find the supporting cases, and the case discussions have sufficient detail to allow the reader to know whether to go and read the full case. The brief summary of requirements of the major rules presented along with dozens of practice pointers assist the practitioner in charting the proof necessary to succeed.

Product Details

ISBN-13: 9781634258807
Publisher: American Bar Association
Publication date: 08/07/2018
Edition description: 2nd Edition
Pages: 354
Product dimensions: 6.00(w) x 8.90(h) x 0.70(d)

About the Author

Professor Joni Larson currently teaches at Thomas M. Cooley Law School in Lansing, Michigan, and is the Assistant Director of the Graduate Tax Program. Prior to teaching, she clerked for the Honorable Judge Irene Scott of the United States Tax Court, and was a tax litigator in the Office of Chief Counsel of the Internal Revenue Service (IRS) in the Austin, Texas, District Counsel Office.

Table of Contents

About the Author ix

Foreword xi

Preface xv

Chapter I Introduction 1

Chapter II General Provisions 5

Rule 101 Scope; Definitions 5

Rule 102 Purpose 6

Rule 103 Rulings on Evidence 7

A Preserving a Claim of Error 8

B Offer of Proof 10

Rule 104 Preliminary Questions 12

A Qualification of Witness 12

B Admissibility of Evidence 13

Ride 105 Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes 14

Rule 106 Remainder of or Related Writings or Recorded Statements 16

A Timely Request 17

B Authentication of Omitted Portion 17

C Admissibility of Omitted Portion 18

Chapter III Judicial Notice 21

Rule 201 Judicial Notice of Adjudicative Facts 21

A Request of Party (Rule 201(c) (2)) 22

B Sua Sponte (Rule201(c)(1)) 23

C Kinds of Facts (Ride 201(b)) 24

D Relevance of Facts 26

E Examples 26

Chapter IV Presumptions in Civil Cases 45

Rule 301 Presumptions in Civil Cases Generally 45

A Determination of Unreported Income 48

B Abandoning Value Determined in the Notice of Deficiency 50

C Deficiency Based on Information Returns 50

D Shift in Burden of Proof - Section 7491(a) 51

E Penalties-Section 7491(c) 52

F Use of Statistical Information-Section 7491(b) 52

G New Matter, Increases in Deficiency, Affirmative Defenses 53

H Statutory-Provided Burden of Proof 54

Rule 302 Applying State Law to Presumptions in Civil Cases 56

Chapter V Relevancy and Its Limits 59

Rule 401 Test for Relevant Evidence 59

Rule 402 General Admissibility of Relevant Evidence 60

A Subsequent Events 61

B Examples 63

Rule 403 Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons 72

A Marginal Relevance 73

B Waste of Time and Unfair Prejudice 73

C Cumulative Evidence 74

D Examples 74

Rule 404 Character Evidence; Crimes or Other Acts 77

Rule 405 Methods of Proving Character 78

A Motive, Intent, Knowledge, Etc.-Rule 404(b)(2) 79

B Business Reputation 81

Rule 406 Habit; Routine Practice 81

Rule 407 Subsequent Remedial Measures 83

Rule 408 Compromise Offers and Negotiations 84

A Purpose Other Than to Prove Liability or Claims Validity 87

B Settlement Not Confidential 89

C Independent Evidence of Settlement 90

Rule 409 Offers to Pay Medical and Similar Expenses 91

Rule 410 Pleas, Plea Discussions, and Related Statements 91

Rule 411 Liability Insurance 92

Rule 412 Sex-Offense Cases: Tie Victims Sexual Behavior or Predisposition 92

Rule 413 Similar Crimes in Sexual-Assault Cases 94

Rule 414 Similar Crimes in Child-Molestation Cases 95

Rule 415 Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation 96

Chapter VI Privileges 97

Rule 501 Privilege in General 97

A Testimonial Privilege 98

B Informer Privilege 99

C Marital Privilege 101

D Psychiatrist-Patient Privilege 102

E Fifth Amendment 103

G Accountant-Client Privilege 118

H Work Product Privilege 120

I Executive or Governmental Privilege 127

Rule 502 Attorney-Client Privilege and Work Product; Limitations on Waiver 131

Chapter VII Witnesses 137

Rule 601 Competency to Testify in General 137

Rule 602 Need for Personal Knowledge 138

A Expert Witnesses 138

Rule 603 Oath or Affirmation To Testify Truthfully 139

Rule 604 Interpreter 140

Rule 605 Judge's Competency as a Witness 140

Rule 606 Jurors Competency as a Witness 140

Rule 607 Who May Impeach a Witness 141

A Standing Pretrial Order 143

Rule 608 A Witness's Character for Truthfulness or Untruthfulness 144

Rule 610 Religious Beliefs or Opinions 149

Rule 611 Mode and Order of Examining Witnesses and Presenting Evidence 150

Rule 612 Writing Used to Refresh a Witness's Memory 151

Rule 613 Witness's Prior Statement 154

Rule 614 Court's Calling or Examining a Witness 154

Rule 615 Excluding Witnesses 155

Chapter VIII Opinions and Expert Testimony 161

Rule 701 Opinion Testimony by Lay Witnesses 161

A Owner of Property 165

Rule 702 Testimony by Expert Witnesses 166

A Owners and Dealers of Property 177

B Testimony About Methodology 177

C Testimony About Facts 179

D Testimony About Principles of Law 180

E Scientific Test Must Be Generally Acceptable in Field 182

F Concurrent Testimony 182

G Tax Court Rule 143 183

Rule 703 Bases of an Expert's Opinion Testimony 187

A Examples 189

Rule 704 Opinion on an Ultimate Issue 189

A Truth or Credibility of Another Witness 190

Rule 705 Disclosing the Facts or Data Underlying an Expert's Opinion 191

Rule 706 Court-Appointed Expert Witnesses 192

Chapter IX Hearsay 195

Rule 801 Definitions That Apply to This Guide; Exclusions from Hearsay 195

A Examples 199

B Party's Own Statement-Rule 801(d)(2)(A) 203

C Manifested a Belief in Its Trust-Rule 801(d)(2)(B) 206

D Authorized by Party to Make Statement- Rule 801(d)(2)(C) 208

E Statement Made in the Scope of the Relationship-Rule 801(d)(2)(D) 208

F Statement by Co-Conspirator-Rule 801 (d)(2)(E) 210

Rule 802 The Rule Against Hearsay 211

Rule 803 Exceptions to the Rule Against Hearsay-Regardless of Whether the Declarant Is Available as a Witness 212

A Made At or Near the Time of the Event 219

B Created by a Person With Knowledge 222

C Created in the Ordinary Course of Business 223

D Indicia of Trustworthiness 223

E Examples 224

F Examples 232

Rule 804 Exceptions to the Ride Against Hearsay-When the Declarant Is Unavailable as a Witness 242

A Examples 249

Rule 805 Hearsay Within Hearsay 251

A Examples 252

Rule 806 Attacking and Supporting the Declarant's Credibility 253

Rule 807 Residual Exception 253

A Circumstantial Guarantees of Trustworthiness 256

B The Statement Must Be More Probative Than Other Evidence 261

C Advance Notice 264

Chapter X Authentication and Identification 267

Rule 901 Authenticating or Identifying Evidence 267

A Authentication By Testimony-Rule 901(b)(1) 270

B Non-Expert Testimony About Handiorting-Rule 901(b)(2) 272

C Comparison-Rule 901(b)(3) 272

D Distinctive Characteristics-Rule 901(b)(4) 273

E Ancient Documents-Rule 901 (b)(8) 275

Rule 902 Evidence That Is Self-Authenticating 276

A Public Documents-Rule 902(1) 279

B Certified Copies of Public Records-Rule 902(4) 280

C Official Publication-Rule 902(5) 280

D Commercial Paper-Rule 902(9) 281

E Records of a Regularly Conducted Activity-Rule 902(11) 281

Rule 903 Subscribing Witness's Testimony 284

Chapter XI Contents of Writings, Recordings, and Photographs 285

Rule 1001 Definitions That Apply to This Article 285

Rule 1002 Requirement of the Original 286

Rule 1003 Admissibility of Duplicates 288

Rule 1004 Admissibility of Other Evidence of Content 291

A Examples 295

Rule 1005 Copies of Public Records to Prove Content 297

Rule 1006 Summaries to Prove Content 298

A Examples 300

Rule 1007 Testimony or Statement of a Party to Prove Content 302

Rule 1008 Functions of the Court and Jury 302

Chapter XII Miscellaneous Rules 305

Rule 1101 Applicability of the Rules 305

Rule 1102 Amendments 307

Rule 1103 Title 307

Appendix 309

Table of Cases 313

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