- 34 -
On April 5, 2004, petitioner filed a motion in limine that
included documentation which resulted in Ace’s recommending on
May 14, 2004, that respondent should concede the earned income
credit issue.
We conclude, and we have found, that (1) when the answer was
filed respondent did not have any documentation supporting
petitioner’s claimed earned income credit, and (2) respondent
first received such documentation as attachments to petitioner’s
first motion in limine, about 4-1/2 months after the answer was
filed.
In arriving at this conclusion, we have taken into account
the stipulated declaration18 by petitioner “under penalty of
perjury under the laws of the State of California”, as follows:
IV. On or about May 2003, I sent by United
States mail to the Internal Revenue Service,
located in Fresno, California, the following
document at the request of Internal Revenue
Service: All five (5) of my children’s birth
certifications; All five (5) of my children’s
school records; Lease Agreement on the
property that I was renting my fianc�e and
our five (5) children; and utility bills,
which included: Electricity, Home Gas bills
and cable. [Reproduced literally.]
Firstly, the May 16, 2003, letter was, indeed, a “request of
the Internal Revenue Service” for relevant documents, but the
parties have stipulated that “3. Petitioner failed to respond to
18 Although the declaration is marked Exhibit 21-R; the
stipulation designates it as Exhibit 21-P. The 21-R marking is
obviously a typographic error that has no effect on our
considerations.
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