Richard M. Downing - Page 27




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          joint amended return in October 1996, as petitioner claimed.12              
          When petitioner’s case was eventually transferred to Appeals                
          Officer Talbott, however, he was unable, after investigation, to            
          establish that Astrid Downing had signed or had intended to file            
          any joint return.  The administrative record indicates that                 
          Appeals Officer Talbott requested petitioner to provide a                   
          statement from Astrid Downing that she had intended to file a               
          joint return.  Insofar as the record reveals, petitioner never              
          provided such a statement.  Ultimately, the final determination             
          reflected Appeals Officer Talbott’s conclusion that petitioner              
          and Astrid Downing never filed a valid 1995 joint return.  On the           




               12 At trial, respondent objected to admitting these two                
          documents into evidence on the grounds that “they are hearsay.              
          They are the opinions of a lower level IRS agent.  They are not             
          the position of the Service and not binding on the Service.”  The           
          Court provisionally admitted the documents into evidence subject            
          to respondent’s right to renew his objections on brief.  On                 
          brief, respondent renews his objections, but on different grounds           
          than asserted at trial.  On brief, respondent does not assert any           
          hearsay objection; we deem respondent to have waived any such               
          objection.  In any event, as shown by the discussion in the text,           
          we do not rely upon these documents to prove the truth of the               
          matters asserted therein; moreover, we do not rely upon Appeals             
          Officer Dugan’s conclusions expressed in these documents and do             
          not view them as binding upon the IRS.  On brief, respondent also           
          objects that admission of these documents into evidence is                  
          contrary to Fed. R. Evid. 602 and 701.  We disagree.  Fed. R.               
          Evid. 602, which limits admissible testimony to matters as to               
          which the witness has personal knowledge, is not germane,                   
          inasmuch as the documents in question do not represent testimony            
          of a witness.  Similarly, Fed. R. Evid. 701, which relates to               
          opinion testimony by lay witnesses, is not germane.  Accordingly,           
          we overrule respondent’s new and renewed evidentiary objections             
          to Exhibits 31-P and 32-P.                                                  





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