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suggested that, if Laney wanted to offer the affidavit as an
expert witness report, then the time to do so was when Henry
appeared as a witness, as we had been informed would be the
situation. In the absence of agreement by respondent, the Court
declined to receive the affidavit into evidence on the first day
of the trial.
Before the trial in the instant case, Laney had sought to
reopen his prior Court of Claims case. In support of his motion
before the Court of Claims (see supra note 6), Laney presented
what appears to be the same Henry affidavit that petitioners
offered into evidence in the instant case.8 We note that, in
the opinion denying Laney’s motion to reopen, the chief judge of
that court quoted from the affidavit and concluded that the
Department of Justice attorney did not make a settlement offer
and further “[concluded] that no settlement agreement was ever
consummated.” Laney v. United States, 26 Cl. Ct. 318, 322, 323
(1992).
On the record in the instant case, we conclude, and we have
found, that petitioners did not enter into a binding settlement
8 Compare Rule 143(b), that ex parte affidavits are not
evidence, with, e.g., Rule 121 to illustrate proper use of
affidavits in certain aspects of motion practice before this
Court. Unless otherwise indicated, all Rule references are to
the Tax Court Rules of Practice and Procedure.
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