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Following that mandate we are bound by rules of evidence
contained in the Federal Rules of Civil Procedure, but we are not
compelled to follow procedural rules contained in the Federal
Rules of Civil Procedure. McKenzie v. Commissioner, 59 T.C. 139,
142-144 (1972), affd. without published opinion 486 F.2d 1401
(5th Cir. 1973). Rule 1(a), however, provides that where there
is no applicable rule of procedure, the Court may prescribe the
procedure, giving particular weight to the Federal Rules of Civil
Procedure. See Brannon's of Shawnee, Inc. v. Commissioner, 69
T.C. 999, 1001 (1978).
If we were to follow the FRCP for guidance in this matter,
the critical question that would have to be answered is whether
the expert report in question was obtained by respondent in
anticipation of litigation or preparation for trial. Rule
26(b)(4)(B) limits discovery, except in unusual circumstances, of
expert opinions obtained solely in anticipation of litigation or
in preparation for trial. Respondent contends that the expert
report was prepared in anticipation of litigation. The expert
report was obtained by respondent's agent during the examination
of petitioner's tax returns and prior to the issuance of the
notice of deficiency. Respondent has not shown that his lawyer
was involved in the administrative process when the independent
expert was hired; that the expert report was prepared at the
direction of an attorney; or that the expert report was in any
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