- 10 - of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Petitioner objects to the introduction of the affidavits and the accompanying records on the ground that those affidavits fail to satisfy the substantive requirements of Fed. R. Evid. 803(6) and 902(11).7 She claims that the affidavits fail to state that the affiants had personal knowledge of the facts recorded in the records or otherwise identify the employee who had personal knowledge of the facts; that they fail to state what is the “regularly conducted business activity” of the payors; and that they fail to state in what manner the records are kept. Our examination of the affidavits and the attached records reveals that those records were kept in the course of regularly conducted business activities. We are satisfied that the various payors are each a “business” for purposes of Fed. R. Evid. 803(6) and 902(11). Moreover, those rules do not require that the 7We recently applied Fed. R. Evid. 803(6) and 902(11) in the case of records kept by an agency of the United States. Clough v. Commissioner, 119 T.C. 183 (2002). The instant case involves records kept by private third-party recordkeepers.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011