Prindle International Marketing, UBO, Keyus Group, Trustee - Page 9

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          determined by respondent.  Petitioners' counsel did not dispute             
          that claim.                                                                 
               Petitioners contend that the diary is admissible and may be            
          used to refresh Mr. Fox's memory under rule 612 of the Federal              
          Rules of Evidence.  We disagree.  The diary fell within the scope           
          of respondent's discovery requests but was not produced during              
          discovery or exchanged as required by the Court's pretrial order.           
          See G.J.B. & Associates, Inc. v. Singleton, 913 F.2d 824, 831               
          (10th Cir. 1990).  In the Singleton case, the plaintiffs had not            
          exchanged discoverable documents as required by the Court's                 
          pretrial order and sought to use the documents to refresh a                 
          witness' memory.  The U.S. Court of Appeals for the Tenth Circuit           
          rejected the assertion that, because the notes were being used to           
          refresh the memory of a witness for the plaintiffs, their counsel           
          had no duty to reveal the notes.  Id.  We conclude that                     
          respondent properly objected to the admission of the diary into             
          evidence and to Mr. Fox's use of the diary to refresh his                   
          recollection at trial.                                                      
          B.   Whether To Recognize Prindle as a Trust for Federal Tax                
               Purposes                                                               
               1.   Mr. and Mrs. Fox Retained Control Over the Purported              
                    Trust Assets                                                      
               Respondent contends that Prindle should not be recognized              
          for Federal income tax purposes because it is a sham.                       
          Petitioners contend that Prindle is not a sham.                             






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