17
495-496 (8th Cir. 1976) (witness' lack of memory impeached by
prior written statement given to FBI agent). That is not the
case here. Petitioner-husband did not previously state or
testify that he deposited new $100 bills; his lack of specific
memory is believable under the circumstances, unlike the cases
respondent cites. Thus, the documents do not impeach petitioner-
husband's lack of memory.
Respondent contends that the documents are admissible under
rule 801(d)(2)(A) of the Federal Rules of Evidence as admissions
by a party. We disagree. Since respondent did not exchange the
documents with petitioners in compliance with the standing
pretrial order, they are admissible only to impeach testimony, by
agreement of the parties, or for good cause shown. Respondent
has not shown good cause for not complying with the pretrial
order. Respondent knew 2 years before trial that petitioners
contended that the money they deposited was from their Brazilian
funds and should have exchanged Exhibits AG and AH with
petitioners as part of the stipulation process. Respondent's
failure to exchange the documents led to the type of surprise
that the pretrial order and Rule 91 were designed to prevent.
Barkley Co. v. Commissioner, 89 T.C. 66, 70 (1987); see Branerton
Corp. v. Commissioner, 61 T.C. 691 (1974). We conclude that
Exhibits AG and AH are not admissible.
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