Estate of Charles a. Boratello, Deceased, C. Norman Borgatello and Josephine E. Donnelly, Co-Executors, and C. Norman Borgatello, Successor Trustee to the Charles A. Borgatello Living Trust - Page 9

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            v. Commissioner, T.C. Memo. 1989-630.  In Diego Investors IV, the                          
            Court refused to allow an expert selected and paid for by the                              
            Commissioner to testify as the taxpayers' witness.  The taxpayers                          
            in Diego Investors IV sought to call the Commissioner's expert to                          
            enhance their tactical position by using selected portions of a                            
            report pertaining to sales data while refuting the remainder of                            
            the expert's unfavorable conclusions.  Although Diego Investors                            
            IV is distinguishable from the instant case in numerous ways, one                          
            critical distinction is that in the instant case, respondent has                           
            gained no tactical advantage by adopting some of the information                           
            in the estate's expert's reports.                                                          
                  In the instant case, the estate provided the Holden I, II,                           
            and Cardenas reports to respondent as evidence of the values of                            
            MVN and MVS, as well as to provide the facts and data underlying                           
            those values.  The estate now seeks to exclude those reports                               
            because they believe that if they are successful, we shall                                 
            conclude that Mr. Marx's reports are invalid based on the                                  
            language in Mr. Marx's disclaimer.  However, it appears that the                           
            estate failed to appreciate that the use of expert testimony is                            
            within the sound discretion of the trial judge.  The test for                              
            admissibility of expert testimony is whether the testimony will                            
            aid the trier of fact to understand the evidence.  See Fed. R.                             
            Evid. 702; United States v. Amaral, 488 F.2d 1148, 1152 (9th Cir.                          

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