- 18 -
was nevertheless deprived of a fair opportunity to challenge the
underlying third-party records. He submits that the meaning of a
fair opportunity must be interpreted in light of the procedural
rules governing a particular proceeding, which in these cases
would be the Tax Court Rules of Practice and Procedure. He
further maintains that to be afforded an adequate opportunity to
challenge the evidence, he would need to have been in receipt of
the declaration with sufficient time under our Rules to conduct
discovery, possibly a deposition, with respect thereto.
Petitioner notes for example that Rule 70(a)(2) requires all
discovery to be completed no later than 45 days prior to the call
of the calendar.
The situation before the Court here is indistinguishable on
this point from those addressed in Rodriguez v. Commissioner,
T.C. Memo. 2005-12, and Spurlock v. Commissioner, T.C. Memo.
2003-124.7 In postures nearly identical to that in the case at
bar, the taxpayers in those case relied, inter alia, upon the
notice requirement of Fed. R. Evid. 902(11) as a basis for
exclusion of proffered declarations and business records (i.e.,
Forms W-2, Forms 1099, employee time reports, payroll records,
paychecks, etc.). Rodriguez v. Commissioner, supra; Spurlock v.
Commissioner, supra. The Court was unpersuaded by their
7 See also Clough v. Commissioner, 119 T.C. 183, 188-191
(2002).
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