TITLE XIV

TRIALS

Rule 140.  Place of Trial
    (a) Designation of place of trial. The petitioner, at the
time of filing the petition, shall file a designation of place of
trial showing the place at which the petitioner would prefer the
trial to be held. If the petitioner has not filed such
designation, the Commissioner, at the time the answer is filed,
shall file a designation showing the place of trial preferred by
the Commissioner. The parties shall be notified of the place at
which the trial will be held. For a list of places at which the
Court has held trial sessions, see Appendix IV.
   (b) Form. Such designation shall be set forth on a paper
separate from the petition or answer and shall consist of an
original and two copies. See Form 4, Appendix I.
   (c) Motion to change place of trial. If a party desires a
change in the designation of the place of trial, then such party
shall file a motion to that effect, stating fully the reasons
therefor. Such motions, made after the notice of the time of
trial has been issued, ordinarily will be deemed dilatory and
will be denied unless the ground therefor arose during that
period or there was good reason for not making the motion sooner.

Rule 141.  Consolidation; Separate Trials
    (a) Consolidation. When cases involving a common question of
law or fact are pending before the Court, it may order a joint
hearing or trial of any or all the matters in issue, it may order
all the cases consolidated, and it may make such orders
concerning proceedings therein as may tend to avoid unnecessary
costs or delay or duplication. Similar action may be taken where
cases involve different tax liabilities of the same parties,
notwithstanding the absence of a common issue. Unless otherwise
permitted by the Court for good cause shown, a motion to
consolidate cases may be filed only after all the cases sought to
be consolidated have become at issue. The caption of a motion to
consolidate shall include all of the names and docket numbers of
the cases sought to be consolidated arranged in chronological
order (i.e., the oldest case first). Unless otherwise ordered,
the caption of all documents subsequently filed in consolidated
cases shall include all of the docket numbers arranged in
chronological order, but may include only the name of the oldest
case with an appropriate indication of other parties.
   (b) Separate trials. The Court, in furtherance of convenience
or to avoid prejudice, or when separate trials will be conducive
to expedition or economy, may order a separate trial of any one
or more claims or defenses or issues, or of the tax liability of
any party or parties. The Court may enter appropriate orders or
decisions with respect to any such claims, defenses, issues, or
parties that are tried separately. As to severance of parties or
claims, see Rule 61(b).

Rule 142.  Burden of Proof
    (a) General. The burden of proof shall be upon the
petitioner, except as otherwise provided by statute or determined
by the Court; and except that, in respect of any new matter,
increases in deficiency, and affirmative defenses, pleaded in the
answer, it shall be upon the respondent. As to affirmative
defenses, see Rule 39.
   (b) Fraud. In any case involving the issue of fraud with
intent to evade tax, the burden of proof in respect of that issue
is on the respondent, and that burden of proof is to be carried
by clear and convincing evidence.  Code Section 7454(a).<1> [<1>
The amendments as to trustees are effective as of January 12,
1990, for dockets involving taxable years beginning after
December 31, 1977. The amendments as to organization managers are
effective as of January 12, 1990, for dockets involving taxable
years beginning after December 22, 1987.]
   (c) Foundation managers; trustees; organization managers: In
any case involving the issue of the knowing conduct of a
foundation manager as set forth in the provisions of Code Section
4941, 4944, or 4945, or the knowing conduct of a trustee as set
forth in the provisions of Code Section 4951 or 4952, or the
knowing conduct of an organization manager as set forth in the
provisions of Code Section 4912 or 4955, the burden of proof in
respect of such issue is on the respondent, and such burden of
proof is to be carried by clear and convincing evidence. Code
Section 7454(b).
   (d) Transferee liability. The burden of proof is on the
respondent to show that a petitioner is liable as a transferee of
property of a taxpayer, but not to show that the taxpayer was
liable for the tax. Code Section 6902(a).
   (e) Accumulated earnings tax. Where the notice of deficiency
is based in whole or in part on an allegation of accumulation of
corporate earnings and profits beyond the reasonable needs of the
business, the burden of proof with respect to such allegation is
determined in accordance with Code Section 534. If the petitioner
has submitted to the respondent a statement which is claimed to
satisfy the requirements of Code Section 534(c), the Court will
ordinarily, on timely motion filed after the case has been
calendared for trial, rule prior to the trial on whether such
statement is sufficient to shift the burden of proof to the
respondent to the limited extent set forth in Code Section
534(a)(2).

Rule 143.  Evidence
    (a) General. Trials before the Court will be conducted in
accordance with the rules of evidence applicable in trials
without a jury in the United States District Court for the
District of Columbia. See Code Section 7453.  To the extent
applicable to such trials, those rules include the rules of
evidence in the Federal Rules of Civil Procedure and any rules of
evidence generally applicable in the Federal courts (including
the United States District Court for the District of Columbia).
Evidence which is relevant only to the issue of a party's
entitlement to reasonable litigation or administrative costs
shall not be introduced during the trial of the case (other than
a case commenced under Title XXVI of these Rules, relating to
actions for administrative costs).  As to claims for reasonable
litigation or administrative costs and their disposition, see
Rules 231 and 232. As to evidence in an action for administrative
costs, see Rule 274 (and that Rule's incorporation of the
provisions of Rule 177(b)).
   (b) Ex parte statements. Ex parte affidavits, statements in
briefs, and unadmitted allegations in pleadings do not constitute
evidence. As to allegations in pleadings not denied, see Rules
36(c) and 37(c) and (d).
   (c) Depositions. Testimony taken by deposition shall not be
treated as evidence in a case until offered and received in
evidence. Error in the transcript of a deposition may be
corrected by agreement of the parties, or by the Court on proof
it deems satisfactory to show an error exists and the correction
to be made, subject to the requirements of Rules 81(h)(1) and
85(e). As to the use of a deposition, see Rule 81(i).
   (d) Documentary evidence.
   (1) Copies. A clearly legible copy of any book, record, paper,
or document may be offered directly in evidence in lieu of the
original, where there is no objection, or where the original is
available but admission of a copy is authorized by the Court;
however, unless impractical, the Court may require the submission
of the original. Where the original is admitted in evidence, a
clearly legible copy may be substituted later for the original or
such part thereof as may be material or relevant, upon leave
granted in the discretion of the Court.
   (2) Return of exhibits. Exhibits may be disposed of as the
Court deems advisable. A party desiring the return at such
party's expense of any exhibit belonging to such party, shall,
within 90 days after the decision of the case by the Court has
become final, make written application to the Clerk, suggesting a
practical manner of delivery. If such application is not timely
made, the exhibits in the case will be destroyed.
   (e) Interpreters. The parties ordinarily will be expected to
make their own arrangements for obtaining and compensating
interpreters.  However, the Court may appoint an interpreter of
its own selection and may fix the interpreter's reasonable
compensation, which compensation shall be paid by one or more of
the parties or otherwise as the Court may direct.
   (f) Expert witness reports.
   (1) Unless otherwise permitted by the Court upon timely
request, any party who calls an expert witness shall cause that
witness to prepare a written report for submission to the Court
and to the opposing party. The report shall set forth the
qualifications of the expert witness and shall state the witness'
opinion and the facts or data on which that opinion is based. The
report shall set forth in detail the reasons for the conclusion,
and it will be marked as an exhibit, identified by the witness,
and received in evidence as the direct testimony of the expert
witness, unless the Court determines that the witness is not
qualified as an expert. Additional direct testimony with respect
to the report may be allowed to clarify or emphasize matters in
the report, to cover matters arising after the preparation of the
report, or otherwise at the discretion of the Court. If not
furnished earlier, each party who calls any expert witness shall
furnish to each other party, and shall submit to the Court, not
later than 30 days before the call of the trial calendar on which
the case shall appear, a copy of all expert witness reports
prepared pursuant to this subparagraph. An expert witness'
testimony will be excluded altogether for failure to comply with
the provisions of this paragraph, unless the failure is shown to
be due to good cause and unless the failure does not unduly
prejudice the opposing party, such as by significantly impairing
the opposing party's ability to cross-examine the expert witness
or by denying the opposing party the reasonable opportunity to
obtain evidence in rebuttal to the expert witness' testimony.
   (2) The Court ordinarily will not grant a request to permit an
expert witness to testify without a written report where the
expert witness' testimony is based on third-party contracts,
comparable sales, statistical data, or other detailed, technical
information. The Court may grant such a request, for example,
where the expert witness testifies only with respect to industry
practice or only in rebuttal to another expert witness.
   (3) For circumstances under which the transcript of the
deposition of an expert witness may serve as the written report
required by subparagraph (1), see Rule 76(e)(1).
OTHER PROVISIONS:
   Note. The amendment to subdivision (f)(1) that redefines the
time by which an expert witness report must be submitted to the
Court and furnished to each party is effective for cases the
trial of which is scheduled to commence after July 1, 1990.

Rule 145.  Exclusion of Proposed Witnesses
    (a) Exclusion. At the request of a party, the Court shall
order witnesses excluded so that they cannot hear the testimony
of other witnesses and it may make the order on its own motion.
This Rule does not authorize exclusion of (1) a party who is a
natural person, or (2) an officer or employee of a party which is
not a natural person designated as its representative by its
attorney, or (3) a person whose presence is shown by a party to
be essential to the presentation of such party's cause.
   (b) Contempt. Among other measures which the Court may take in
the circumstances, it may punish as for a contempt (1) any
witness who remains within hearing of the proceedings after such
exclusion has been directed, that fact being noted in the record;
and (2) any person (witness, counsel, or party) who willfully
violates instructions issued by the Court with respect to such
exclusion.

Rule 146.  Determination of Foreign Law
    A party who intends to raise an issue concerning the law of a
foreign country shall give notice in the pleadings or other
reasonable written notice. The Court, in determining foreign law,
may consider any relevant material or source, including
testimony, whether or not submitted by a party or otherwise
admissible. The Court's determination shall be treated as a
ruling on a question of law.

Rule 147.  Subpoenas
    (a) Attendance of witnesses; form; issuance. Every subpoena
shall be issued under the seal of the Court, shall state the name
of the Court and the caption of the case, and shall command each
person to whom it is directed to attend and give testimony at a
time and place therein specified. A subpoena, including a
subpoena for the production of documentary evidence, signed and
sealed but otherwise blank, shall be issued to a party requesting
it, who shall fill it in before service. Subpoenas may be
obtained at the Office of the Clerk in Washington, D.C., or from
a trial clerk at a trial session. See Code Section 7456(a).
   (b) Production of documentary evidence. A subpoena may also
command the person to whom it is directed to produce the books,
papers, documents, or tangible things designated therein; but the
Court, upon motion made promptly and in any event at or before
the time specified in the subpoena for compliance therewith, may
(1) quash or modify the subpoena if it is unreasonable and
oppressive, or (2) condition denial of the motion upon the
advancement by the person in whose behalf the subpoena is issued
of the reasonable cost of producing the books, papers, documents,
or tangible things.
   (c) Service. A subpoena may be served by a United States
marshal, or by a deputy marshal, or by any other person who is
not a party and is not less than 18 years of age. Service of a
subpoena upon a person named therein shall be made by delivering
a copy thereof to such person and by tendering to such person the
fees for one day's attendance and the mileage allowed by law.
When the subpoena is issued on behalf of the Commissioner, fees
and mileage need not be tendered. See Rule 148 for fees and
mileage payable. The person making service of a subpoena shall
make the return thereon in accordance with the form appearing in
the subpoena.
   (d) Subpoena for taking depositions.
   (1) Issuance and response. The order of the Court approving
the taking of a deposition pursuant to Rule 81(b)(2), or the
executed stipulation pursuant to Rule 81(d), or the service of
the notice of deposition pursuant to Rule 74(b) or 75(c),
constitutes authorization for issuance of subpoenas for the
persons named or described therein. The subpoena may command the
person to whom it is directed to produce and permit inspection
and copying of designated books, papers, documents, or tangible
things, which come within the scope of the order or stipulation
pursuant to which the deposition is taken. Within 15 days after
service of the subpoena or such earlier time designated therein
for compliance, the person to whom the subpoena is directed may
serve upon the party on whose behalf the subpoena has been issued
written objections to compliance with the subpoena in any or all
respects. Such objections should not include objections made, or
which might have been made, to the application to take the
deposition pursuant to Rule 81(b)(2) or to the notice of
deposition under Rule 74(c) or 75(d). If an objection is made,
the party serving the subpoena shall not be entitled to
compliance therewith to the extent of such objection, except as
the Court may order otherwise upon application to it. Such
application for an order may be made, with notice to the other
party and to any other objecting persons, at any time before or
during the taking of the deposition, subject to the time
requirements of Rule 70(a)(2) or Rule 81(b)(2). As to
availability of protective orders, see Rule 103; and, as to
enforcement of such subpoenas, see Rule 104.
   (2) Place of examination. The place designated in the subpoena
for examination of the deponent shall be the place specified in
the notice of deposition served pursuant to Rule 74(b) or 75(c)
or in the order of the Court referred to in Rule 81(b)(2) or in
the executed stipulation referred to in Rule 81(d). With respect
to a deposition to be taken in a foreign country, see Rules
74(e), 81(e)(2), and 84(a).
   (e) Contempt. Failure by any person without adequate excuse to
obey a subpoena served upon any such person may be deemed a
contempt of the Court.

Rule 148.  Fees and Mileage
    (a) Amount. Any witness summoned to a hearing or trial, or
whose deposition is taken, shall receive the same fees and
mileage as witnesses in the United States District Courts.
   (b) Tender. No witness, other than one for the Commissioner,
shall be required to testify until the witness shall have been
tendered the fees and mileage to which the witness is entitled
according to law. With respect to witnesses for the Commissioner,
see Code Section 7457(b)(1).
   (c) Payment. The party at whose instance a witness appears
shall be responsible for the payment of the fees and mileage to
which that witness is entitled.

Rule 149.  Failure to Appear or to Adduce
Evidence
    (a) Attendance at trials. The unexcused absence of a party or
a party's counsel when a case is called for trial will not be
ground for delay.  The case may be dismissed for failure properly
to prosecute, or the trial may proceed and the case be regarded
as submitted on the part of the absent party or parties.
   (b) Failure of Proof. Failure to produce evidence, in support
of an issue of fact as to which a party has the burden of proof
and which has not been conceded by such party's adversary, may be
ground for dismissal or for determination of the affected issue
against that party. Facts may be established by stipulation in
accordance with Rule 91, but the mere filing of such stipulation
does not relieve the party, upon whom rests the burden of proof,
of the necessity of properly producing evidence in support of
facts not adequately established by such stipulation. As to
submission of a case without trial, see Rule 122.

Rule 150.  Record of Proceedings
    (a) General. Hearings and trials before the Court shall be
stenographically reported or otherwise recorded, and a transcript
thereof shall be made if, in the opinion of the Court or the
Judge presiding at a hearing or trial, a permanent record is
deemed appropriate. Transcripts shall be supplied to the parties
and other persons at such charges as may be fixed or approved by
the Court.
   (b) Stenographic transcript as evidence. Whenever the
testimony of a witness at a trial or hearing which was
stenographically reported or otherwise recorded is admissible in
evidence at a later trial or hearing, it may be proved by the
transcript thereof duly certified by the person who reported the
testimony.

Rule 151.  Briefs
    (a) General. Briefs shall be filed after trial or submission
of a case, except as otherwise directed by the presiding Judge.
In addition to or in lieu of briefs, the presiding Judge may
permit or direct the parties to make oral argument or file
memoranda or statements of authorities.
   (b) Time for filing briefs. Briefs may be filed simultaneously
or seriatim, as the presiding Judge directs. The following times
for filing briefs shall prevail in the absence of any different
direction by the presiding Judge:
   (1) Simultaneous briefs. Opening briefs within 75 days after
the conclusion of the trial, and answering briefs 45 days
thereafter.
   (2) Seriatim briefs. Opening brief within 75 days after the
conclusion of the trial, and answering briefs 45 days thereafter,
and reply brief within 30 days after the due date of the
answering brief.
   A party who fails to file an opening brief is not permitted to
file an answering or reply brief except on leave granted by the
Court. A motion for extension of time for filing any brief shall
be made prior to the due date and shall recite that the moving
party has advised such party's adversary and whether or not such
adversary objects to the motion. As to the effect of extensions
of time, see Rule 25(c).
   (c) Service. Each brief will be served by the Clerk promptly
upon the opposite party after it is filed, except where it bears
a notation that it has already been served by the party
submitting it, and except that, in the event of simultaneous
briefs, such brief will not be served until the corresponding
brief of the other party has been filed, unless the Court directs
otherwise. Delinquent briefs will not be accepted unless
accompanied by a motion setting forth reasons deemed sufficient
by the Court to account for the delay.  In the case of
simultaneous briefs, the Court may refuse to receive a delinquent
brief from a party after such party's adversary's brief has been
served upon such party.
   (d) Number of copies. A signed original and two copies of each
brief, plus an additional copy for each person to be served,
shall be filed.
   (e) Form and content. All briefs shall contain the following
in the order indicated:
   (1) On the first page, a table of contents with page
references, followed by a list of all citations arranged
alphabetically as to cited cases and stating the pages in the
brief at which cited. Citations shall be in italics when printed
and underscored when typewritten.
   (2) A statement of the nature of the controversy, the tax
involved, and the issues to be decided.
   (3) Proposed findings of fact (in the opening brief or
briefs), based on the evidence, in the form of numbered
statements, each of which shall be complete and shall consist of
a concise statement of essential fact and not a recital of
testimony nor a discussion or argument relating to the evidence
or the law. In each such numbered statement, there shall be
inserted references to the pages of the transcript or the
exhibits or other sources relied upon to support the statement.
In an answering or reply brief, the party shall set forth any
objections, together with the reasons therefor, to any proposed
findings of any other party, showing the numbers of the
statements to which the objections are directed; in addition, the
party may set forth alternative proposed findings of fact.
   (4) A concise statement of the points on which the party
relies.
   (5) The argument, which sets forth and discusses the points of
law involved and any disputed questions of fact.
   (6) The signature of counsel or the party submitting the
brief.  As to signature, see Rule 23(a)(3).

Rule 152.  Oral Findings of Fact or Opinion
    (a) General. Except in actions for declaratory judgment or
for disclosure (see Titles XXI and XXII), the Judge, or the
Special Trial Judge in any case in which the Special Trial Judge
is authorized to make the decision of the Court pursuant to Code
Section 7443A(b)(2) or (3) and (c), may, in the exercise of
discretion, orally state the findings of fact or opinion if the
Judge or Special Trial Judge is satisfied as to the factual
conclusions to be reached in the case and that the law to be
applied thereto is clear.
   (b) Transcript. Oral findings of fact or opinion shall be
recorded in the transcript of the trial. The pages of the
transcript that contain such findings of fact or opinion (or a
written summary thereof) shall be served by the Clerk upon all
parties.
   (c) Citation. Opinions stated orally in accordance with
paragraph (a) of this Rule shall not be cited or relied upon as
precedent. However, such opinions (including findings of fact)
may be referred to for purposes of the application of the
doctrine of res judicata, collateral estoppel, or law of the
case.

Rule 153, 154.  [Reserved]

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