Francis A. Morlino - Page 11

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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