Andrew L. Paradiso - Page 12

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          that he did not have the affidavits at trial because he expected            
          the trial to be 2 weeks after the calendar call.  We deny his               
          request for reasons stated next.                                            
               Reopening the record to submit additional evidence is a                
          matter within the discretion of the trial court.  Zenith Radio              
          Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 331 (1971);                
          Butler v. Commissioner, 114 T.C. 276, 286-287 (2000).  A court              
          generally will not grant a motion to reopen the record unless,              
          among other requirements, the evidence relied on (1) is material            
          to the issue for decision and (2) probably would change the                 
          outcome of the case.  Butler v. Commissioner, supra at 287.                 
               Dunstan’s affidavit states that petitioner misunderstood               
          that a stock transaction was a nontaxable exchange and not a                
          sale.  Dunstan’s affidavit does not show that the sales of mutual           
          fund shares were nontaxable exchanges, that Dunstan believed or             
          told petitioner that they were nontaxable exchanges, that Dunstan           
          was a tax professional, or that petitioner relied on Dunstan’s              
          advice.  Petitioner has not provided any other affidavits.  Thus,           
          we have no reason to believe that, if admitted, the affidavits              
          would change the outcome of this case.  In addition, affidavits             
          are generally inadmissible to show the proof of the contents                
          because they are hearsay.  Woodall v. Commissioner, T.C. Memo.              
          2002-318 n.6; Yang-Wu v. Commissioner, T.C. Memo. 2002-68 n.11;             







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