- 56 - Rule 146 is taken almost verbatim from rule 44.1 of the Federal Rules of Civil Procedure.23 See Note to Rule 146, 60 T.C. 1137. 23 The 1966 Advisory Committee Notes to rule 44.1 of the Federal Rules of Civil Procedure, 28 U.S.C. app. at 759 (1994), state, in pertinent part: The * * * new rule describes the materials to which the court may resort in determining an issue of foreign law. Heretofore, the district courts, applying Rule 43(a), have looked in certain cases to State law to find the rules of evidence by which the content of foreign-country law is to be established. The State laws vary; some embody procedures which are inefficient, time consuming and expensive. * * * In all events the ordinary rules of evidence are often inapposite to the problems of determining foreign law and have in the past prevented examination of material which could have provided a proper basis for the determination. The new rule permits consideration by the court of any relevant material, including testimony, without regard to its admissibility under Rule 43. * * * * * * * * * * In further recognition of the peculiar nature of the issue of foreign law, the new rule provides that in determining this law the court is not limited by material presented by the parties; it may engage in its own research and consider any relevant material thus found. The court may have at its disposal better foreign law materials than counsel have presented, or may wish to reexamine and amplify material that has been presented by counsel in partisan fashion or in insufficient detail. On the other hand, the court is free to insist on a complete presentation by counsel. * * * * * * * The new rule refrains from imposing an obligation on the court to take "judicial notice" of foreign law because this would put an extreme burden on the court in many cases; and it avoids the use of the concept of "judicial notice" in any form because of the uncertain meaning of that concept as applied to foreign law. * * * Rather the rule provides flexible (continued...)Page: Previous 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 Next
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