- 20 -
under the business records exception to hearsay rule. His
objection is that the records are “incomplete”; i.e., “If they
were in fact prepared in the normal course of business a copy of
the transmittal document would have also been included.”
Petitioner refers to the Forms W-3, Transmittal of Wage and Tax
Statements, and Forms 1096, Annual Summary and Transmittal of
U.S. Information Returns, that entities transmitting Forms W-2 to
the Social Security Administration and Forms 1099 to the IRS,
respectively, are required to file. These transmittal documents
contain a jurat clause with a declaration under penalties of
perjury that the accompanying materials are true, correct, and
complete.
Fed. R. Evid. 803 provides, in relevant part:
RULE 803. Hearsay Exceptions; Availability of
Declarant Immaterial
The following are not excluded by the hearsay
rule, even though the declarant is available as a
witness:
* * * * * * *
(6) Records of regularly conducted activity.-
-A memorandum, report, record, or data
compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or
near the time by, or from information transmitted
by, a person with knowledge, if kept in the course
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
Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 NextLast modified: May 25, 2011