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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...)
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