MARCUS C. SEAY, )
Petitioner, )
)
v. ) Docket No. 24411
)
COMMISSIONER OF INTERNAL REVENUE )
Respondent.
Petitioner hereby files his Opposition to IRS Motion for Summary Judgment dated June 20, 2006 based upon the following grounds:
1. The issue before the court is the introduction into evidence of 1099 and W-2 forms issued by various companies on money received by Petitioner. The government introduced them without laying a proper foundation, without meeting the laws, without complying with Rules of Federal Evidence, and without meeting the minimum requirements of courts.
2. The IRS seeks to use exceptions to the hearsay rule without following the proper procedures. For example, in this case, none of the documents (certificates) except one were notarized as required by the rules. The IRS should not be allowed to evade the clear requirements of the law.
3 To comply with requirements of authentication under Federal Rules of Evidence (FRE) 803(6), it was insufficient that Respondent’s attorneys testified merely to existence of documents, with no proof shown of origination or source of documents. See Coughlin v Capitol Cement Co (1978, CA5 Tex) 571 F2d 290, 1978-I CCH Trade Cases 61957, 3 Fed Rules Evid Serv 490.
4. Under FRE 803(6) testimony of custodian or other qualified witness who can explain record-keeping procedure is essential, and if witness cannot vouch that requirements of rule have been met, entry must be excluded. See Liner v J B Talley & Co (1980 CA5 La) 618 F2d 327, 6 Fed Rules Evid Serv 117, rch den (1980, CA5 La) 623 F2d 711.
5. Hearsay evidence may not be used to lay foundation for admission of business records; FRE(6) explicitly provides that foundational requirements must be shown by testimony of custodian or other qualified witness. See Tongil Co v The Vessel “Hyundia Innovator” (1992, CA9 Cal) 968 F2d 999, 92 CD05 6052, 92 Daily Journal DAR 9544, 1992 AMC 2440, 35 Fed Rules Evid Serv 107.
6. The Government argues that the documents were admissible under FRE 803(24), the residual hearsay exception. That provision creates a general exception to the inadmissibility of hearsay where there are adequate "circumstantial guarantees of trustworthiness . . . ." Fed.R.Evid. 803(24). But FRE 803(24) is subject to the following proviso: "However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including name and address of declarant." If notice is given, the statement(s) may be admitted where there are:
equivalent circumstantial guarantees of trustworthiness [to the other hearsay exceptions], if the court determines that
(A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
7. The Petitioner is under no duty to rebut bare allegations by the prosecutor that documents are what they purport to be and establish the truth of what they represent. Cf. Fed.R.Evid.901 (dealing with requirements for authentication or identification). Business records are not self-proving documents as public records may be. See Fed.R.Evid. 803(8). In our view, the goals underlying the Federal Rules of Evidence would not be furthered by upholding the admissibility of these documents as the record now stands, since to do so we would necessarily eviscerate the requirements of FRE 803(6) and 803(24). Although the Federal Rules of Evidence are to be liberally construed in favor of admissibility, this does not mean that we may ignore requirements of specific provisions merely because we view the proffered evidence as trustworthy. We thus conclude that the documents constitute hearsay, that they were not admissible under the business records exception since a proper foundation for them was not laid, that the residual hearsay exception was inapplicable since the Government did not give Petitioner notice of its intention to rely on Rule 803(24) and the court did not make the findings as required by that rule, and that the documents were not admissible under any other exception or exclusion to Rule 801's prohibition of hearsay.
8. The IRS subpoenaed third-party records do not provide for the income set forth in the Stipulation of Facts, nor a liability thereto, and thus, there is no support for a notice of deficiency.
9. In conclusion, the Court erred in admitting numerous documents as well as the summaries prepared by the IRS agent. The documents were hearsay and the Government did not comply with the foundation requirements of Rule 803(6), the business records exception. Further, the residual hearsay exception, Rule 803(24), was not complied with as the Government did not notify the Petitioner that it planned to seek the admission of the documents on Rule 803(24) grounds.
Wherefore, Petitioner request relief requested herein above.
August 23, 2006
Marcus C. Seay
1009 Dumbarton Circle
Gastonia, NC 28054
I do hereby certify that a copy of the foregoing OPPOSITION TO MOTION FOR SUMMARY JUDGMENT was served on Respondent’s counsel by mailing the same on August 23, 2006 to:
STEVEN M. WEBSTER
Senior Attorney (SBSE)
320 Federal Place, Room 509
Greensboro, NC 27401