Nathaniel Caleb Avery - Page 8

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               Respondent argues that the Court should admit Exhibit 1-R              
          into evidence pursuant to rule 807 of the Federal Rules of                  
          Evidence.  That rule allows admission of a statement not                    
          expressly within any of the other exceptions to the hearsay rule            
          when the statement is material and probative and when “the                  
          interests of justice will best be served by admission of the                
          statement into evidence.”  The documents underlying Exhibit 1-R             
          are both material and probative of the issue of whether                     
          petitioner had unreported taxable income, and petitioner does not           
          deny that he was paid the wages referenced in those documents.              
          Given the circumstantial guaranties of trustworthiness present in           
          this case, the inability of respondent to procure a custodian of            
          the records of the bankrupt Efeckta, and the lack of any evidence           
          in the record to suggest that the payroll summaries are anything            
          other than what they purport to be, we shall admit the documents            
          into evidence.6  See Karme v. Commissioner, 673 F.2d 1062, 1065             
          (9th Cir. 1982) (Fed. R. Evid. 807 authorizes a court to admit a            
          record into evidence so long as the record is material,                     
          probative, and trustworthy), affg. 73 T.C. 1163 (1980); see also            

               6 Petitioner had fair opportunity to challenge the documents           
          underlying Exhibit 1-R in advance of trial but did not take that            
          opportunity.  Respondent’s pretrial memorandum gave notice to               
          petitioner of the possibility of respondent’s introducing                   
          evidence that might be supplied by the custodian of records for             
          Efeckta.  Petitioner had sufficient time to call witnesses to               
          testify at trial on the matter of the payroll records of Efeckta.           
          Finally, Exhibit 1-R involves a matter which should be familiar             
          to petitioner; namely, petitioner’s own income for 2002.                    





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