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Re: [tips_and_tricks] Facts not in evidence

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  • fredm07@knology.net
    Some thoughts... How about filing a Motion in Limine to prevent such returns from being entered into evidence? If the motion is denied, object on the bases
    Message 1 of 3 , Jun 1, 2006
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      Some thoughts...

      How about filing a Motion in Limine to prevent such returns from being
      entered into evidence?

      If the motion is denied, object on the bases (plural) that 1) the returns
      are assuming facts not in evidence, as you alluded to, 2) the documents
      are hearsay (especially if not authenticated by the competent fact witness
      you mentioned), and 3) if opposing counsel counters with "exception to
      hearsay; government document", then move to compel him/her to a) provide
      the ORIGINALS (as is your right), and b)prove that the document is really
      a "government" document, i.e. from a true agency of the government.

      Next objections you could raise might
      include "speculation", "inflammatory" and/or "prejudicial". Worth a try.
      Keep us posted on what you end up doing & how you fare.

      On Wed, 31 May 2006 13:36:06 -0500, Woodboy <woodboy@...> wrote :

      > I'm looking for ideas, case law, strategies, etc, that discourages
      judges
      > and administrative agents from inferring facts not in evidence.
      >
      > I am focusing particularly on information returns that are treated as
      > presumptively correct and are presumed to be evidence of having received
      > wages or gross income subject to taxation. However, if those documents
      are
      > not accompanied with testimony from a competent fact witness, and are
      not
      > signed pursuant to sections 6061 and 6065 of the IRC, then those
      documents
      > should be inadmissible as evidence. If those documents are not admitted
      as
      > evidence, then theoretically there is no evidence of having had received
      > wages or gross income subject to taxation.
      >
      > Thanks.
    • Woodboy
      ... Thanks for responding. Currently I am focusing my research in the area of tax court because that is the most popular judicial arena to seek remedy. My
      Message 2 of 3 , Jun 2, 2006
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        How about filing a Motion in Limine to prevent such returns from being
        entered into evidence?

        If the motion is denied, object on the bases (plural) that 1) the returns
        are assuming facts not in evidence, as you alluded to, 2) the documents
        are hearsay (especially if not authenticated by the competent fact witness
        you mentioned), and 3) if opposing counsel counters with "exception to
        hearsay;  government document", then move to compel him/her to a) provide
        the ORIGINALS (as is your right), and b)prove that the document is really
        a "government" document, i.e. from a true agency of the government.

        Next objections you could raise might
        include "speculation", "inflammatory" and/or "prejudicial".  Worth a try. 
        Keep us posted on what you end up doing & how you fare.

        Thanks for responding. Currently I am focusing my research in the area of tax court because that is the most popular judicial arena to seek remedy. My primary concern with motions, especially at tax court, is my long distance observation and reading of many tax court decisions that most motions from pro se petitioners---if the judge smells a potential tax resister, which is easy to do when, in the petition, one must admit to having not filed a return---are denied without argument or any disclosure of findings of fact to conclusions of law. Perhaps that observation in itself is noteworthy for appeal, but that does not help at tax court.

        IIRC, a motion in limine is a pretrial motion. The motion in limine is interesting because of the way in which a tax court case proceeds. I think one might want to wait until the door for formal discovery formally closes (75 days prior to calendar call) before attempting that kind of motion. But one of the tricks of the IRS attorneys is to not disclose all documents until 20 seconds before trial. The tax court rules require only that all documents be shared "at or before the commencement of trial." So a motion in limine might merely tip off the attorney as to one's strategy.

        I'm thinking perhaps that challenging the authentication of the documents directly at trial might be prudent so that the attorney is less prepared.

        Another concern I have with motions is that tax court judges tend to be predisposed against tax resisters. The judge full well knows that a motion to suppress the one and only piece of evidence the thieves possess---a facsimile copy of an information return---necessarily defeats the thieves' case and must result in a deficiency decision of zero. I don't think a tax court judge will allow such a precedent. I am open to the idea that tax court judges are predisposed against tax resisters because so few come to court prepared to discuss evidence. Possibly the rare petitioner who arrives ready to stay within the boundaries of evidence might receive a shocking but favorable decision from a tax court judge. But I am not hopeful.

        Of course, once tipped that a petitioner grasps the rules of evidence better than most pro se petitioners, the attorney will subpoena the custodian of the records of the company from which the information returns were filed. That act then would easily motivate a judge to authenticate the documents pursuant to rule 803(6). The strategy thereafter would be to impeach the witness and the underlying presumption that the document is reporting wages or gross income subject to taxation.

        All of the points you raised for objections I have noted and I am adding them to my notebook.

        Another potential good strategy suggested by somebody else is to beat the IRS attorney to the punch in proposing the first draft for the joint stipulations of fact. I notice that because many pro se petitioners are unfamiliar with the court rules that they tend to let the IRS attorney drive the boat. That is a mistake from my observation. Typically what I have noticed from watching the tax court docket is when the attorney suggests the first draft for the stipulations, and the petitioner objects and disagrees, the attorney then quickly files a motion to show cause for why the proposed stipulations should not be admitted as proposed.

        Then the judge ignores everything the petitioner says in his or her response to the show cause order and issues an order making the proposed stipulations absolute. Things potentially go downhill from there quickly.

        These IRS attorneys are deceptive and never to be trusted. They are slime, but most pro se petitioners are not prepared. And the judges tend to not like tax resisters.

        Just my opinion and IANAL.
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