Section of Taxation Publications
  VOL. 57
NO. 2
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 Note: The following is an excerpt from the introduction to the article as published in The Tax Lawyer. Author citations have been omitted for brevity. Tax Section members may read the article in its entirety in Adobe Acrobat format.
 Tax Evidence II: A Primer on the Federal Rules of Evidence as Applied by the Tax Court
Joni Larson*

*Assistant Professor of Law, Thomas M. Cooley Law School. University of Montana, B.A. 1986, J.D. 1989; University of Florida, LL.M. in Taxation 1990. The author expresses appreciation for invaluable suggestions and helpful criticisms given on previous drafts by Harve M. Lewis, Washington National Tax Practice, Procedure & Administration, KPMG LLP, and Peter Reilly, Special Counsel (Tax Practice and Procedure) to the Assistant Chief Counsel (Administrative Provisions and Judicial Practice). The views and opinions expressed in this Article are solely those of the author, as are any errors or omissions. This paper is a substantial revision of Joni Larson, Tax Evidence: A Primer on the Federal Rules of Evidence as Applied by the Tax Court, 53 Tax Law. 181 (1999).


The United States Tax Court applies the Federal Rules of Evidence (the "Rules") during its proceedings. These rules establish the guidelines the judge will use to determine what testimony and documents will be admissible in evidence.

We follow the Federal Rules of Evidence in our proceedings. This provides all parties with ground rules for presenting their cases. To depart from these rules not only would contradict our mandated authority but also would prejudice the parties by removing the certainty of what the Court may consider in finding facts. A party could not adequately prepare or defend a case if it were uncertain what standards would be applied to judge the admissibility of evidence. While it is generally accepted that a relaxed application of the rules of evidence during a bench trial results in less prejudice to the fact finder because of a judge's legal training and experience, the uncertainty of what will be used to find facts is highly prejudicial to a party whether the fact finder is a judge or a jury. Incompetent evidence should not be admitted to proof. We, therefore, believe that adhering to the Federal Rules of Evidence is a sound way to protect the integrity of our proceedings.

In order to present the best case possible, it is imperative for a party litigating in the Tax Court to understand the Rules and how they have been interpreted and applied by the Tax Court.

This Article surveys the Tax Court's interpretation and application of the Rules. It updates and expands an earlier version of this Article. The Article does not discuss the application of the Rules by federal district courts, the Court of Federal Claims, or the federal circuit courts of appeal, except to the extent there is a split of authority in the circuit courts. Appendix A identifies those Rules that have not been addressed or interpreted by the Tax Court in its opinions. Appendix B provides a tabular summary of the Rules most commonly used in the Tax Court and their various foundational requirements.


Published by
Section of Taxation, American Bar Association
With the Assistance of
Georgetown University Law Center


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