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Appeals officer abused his discretion in determining to proceed
with collection. Id. at 104.
The term “relevant evidence” is defined in rule 401 of the
Federal Rules of Evidence to mean “evidence having any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” The testimony in the instant
case is relevant, and therefore admissible, if and only if the
testimony has a tendency to make the existence of any fact that
is of consequence in determining whether Mr. O’Shea abused his
discretion more probable or less probable than it would be
without the evidence. Cf. Robinette v. Commissioner, supra at
103-104.
When considered in light of petitioner’s purpose in offering
the testimony–-to show Mr. O’Shea’s inflexibility–-the testimony
is not relevant for the simple reason that there is no evidence
that either petitioner or Mr. Burke ever informed Mr. O’Shea of
petitioner’s difficulties in assembling the information necessary
to respond to Mr. O’Shea’s requests. Because Mr. O’Shea was
never informed of those difficulties, the difficulties can hardly
have had any bearing on Mr. O’Shea’s determination to proceed
with collection. Stated in the terms of rule 401 of the Federal
Rules of Evidence, the testimony cannot possibly have any
tendency to make the existence of any fact that is of consequence
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Last modified: May 25, 2011