- 9 -
individual who prepared the written report that respondent timely
submitted to the Court and served on petitioner as required by
Rule 143(f). We determined that that individual was not an
expert qualified to opine on the fair market value of the Mark IV
helmet as issue. Respondent called two fact witnesses, Dr.
Jamieson and Mr. Gilliam, who testified at trial. We found each
of them credible.5
5 Petitioner renews on brief his contention at trial that the
testimony of respondent's witnesses, Dr. Jamieson and Mr. Gil-
liam, should be excluded because their identity was omitted from
respondent's trial memorandum dated Jan. 5, 1995, and, as a
result of that omission, he did not have the opportunity to
prepare for the testimony of those witnesses. The identity of
respondent's witnesses, Dr. Jamieson and Mr. Gilliam, was dis-
closed to petitioner, inter alia, in an amendment to trial
memorandum for respondent dated Jan. 12, 1995 (respondent's
amendment to trial memorandum). Petitioner was aware of the
identity of those witnesses almost two weeks before the trial
herein, made no effort to ascertain their whereabouts, did not
ask respondent how he could contact them, and chose not to
contact them. We reaffirm our finding at trial that under those
circumstances petitioner's ability to present his case was not
prejudiced by respondent's calling Dr. Jamieson and Mr. Gilliam
as witnesses.
Petitioner also renews on brief his suggestion at trial that
this Court should not rely on the testimony of Dr. Jamieson and
Mr. Gilliam because they were not credible. The determination of
the credibility of witnesses is a question of fact that is within
our discretion. Friedman v. Commissioner, 235 F.2d 86 (6th Cir.
1956), affg. T.C. Memo. 1954-198. As noted above, we found each
of respondent's two fact witnesses credible.
Petitioner also renews on brief his contention at trial that
the testimony of respondent's witness, Dr. Jamieson, should be
excluded because it was beyond the scope of testimony stated in
respondent's amendment to trial memorandum. Petitioner also
objects on brief to the testimony of respondent's witness, Mr.
Gilliam, on the same grounds. Petitioner's contentions about the
(continued...)
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