Opinion
23204-16
01-06-2022
Emilio M. Cerejo & Dawn H. Cerejo, Petitioners v. Commissioner of Internal Revenue, Respondent
ORDER
Christian N. Weiler Judge.
This case is calendared for trial at a special trial session commencing June 6, 2022, in Miami, Florida. The issues for decision are whether petitioners are liable for deficiencies and fraud penalties due to their alleged receipt of unreported income for tax years 2003 through 2011.
On October 6, 2021, respondent filed a Motion in Limine seeking admission into evidence financial records from the Banque Cantonale Vaudoise (BCV), Caixa Geral de Depositos a/k/a La Caixa (CGD), and Pictet. According to respondent, the records were received by the IRS examining revenue agent from representatives of petitioners. Respondent seeks to introduce these financial records at trial as being exempt from hearsay under Fed.R.Evid. 801(d)(2) as a party admission.
As discussed below, we will deny respondent's Motion in Limine.
Based on our review, the records appear to be business records; however, it also appears that some of the records were received in an exchange of information pursuant to a foreign income tax treaty agreement between the United States and Switzerland. Unlike the UBS documents (discussed in the Court's December 15, 2021, order), a "Certification of Business Records" has not been furnished by an authorized representative for these records.
Rather, respondent has included a sworn declaration from the examining revenue agent, stating how he received these records from petitioners' prior representative. Pursuant to this declaration, respondent seeks to admit these records under the party admission exception to hearsay found under Fed. R. Evid. 801(d)(2).
Petitioners oppose respondent's Motion in Limine on two grounds. First, petitioners argue respondent's Motion is incomplete in that the Motion fails to establish the admissibility of the records. Second, petitioners argue that the records are not admissible as party admissions under Fed.R.Evid. 801(d)(2). Petitioners also object to the records for relevancy and authentication.
The records in question, including BCV, CGD, and Pictet, were created by third parties, not petitioners. Therefore, the Court does not find these records to be a party admission by petitioners under Fed.R.Evid. 801(d)(2). However, some of these same records may otherwise not be hearsay under an applicable exclusion or exemption found in the Federal Rules of Evidence. At this point, there has been no effort to admit these records as self-authenticated foreign business records in advance of trial. Respondent remains free to lay a foundation at trial to overcome any objection as to the authenticity of these records. See Fed.R.Evid. 901. Finally, the Court reserves ruling on any relevancy objection raised by petitioners to these records in advance of trial.
In consideration of the foregoing, it is
ORDERED that respondent's Motion In Limine, filed on October 6, 2021, is denied.