Non-attorney aspirants to admission to the United States Tax Court Bar are well advised to devote substantial study to the FRE; questions concerning same take up 25% of then examination. Those questions will come fast and furious, allowing little time for cogitation (and the exam is closed-book anyway). At trial, evidentiary scrimmages are the plat du jour, so the practitioner needs instant recall. Hearsay is a major evidentiary component.

Judge Travis A. (“Tag”) Greaves has an extensive review of Rule 807 residual exceptions and a few pointers on the specific exceptions in Rule 803 in Amgen, Inc, and Subsidiaries, Docket No. 16017-21, filed 5/13/25.

Section 7453 and Rule 143(a) subject Tax Court to the FRE.

“Generally, out of court statements offered to prove the truth of the matter asserted are inadmissible hearsay. Fed. R. Evid. 801(c), 802. But there are many exceptions to this general rule, such as the public-record exception, the ancient records exception, and the residual hearsay exception…. The proponent of the hearsay bears the burden of showing that it is admissible. Regardless of the admissibility of the hearsay, an expert may rely on hearsay as the basis for his opinion. Fed. R. Evid. 703. (Order, at p. 1). (Citation omitted).

Guaranteed trustworthiness lets in 10-Ks filed with SEC and annual reports to shareholders of publicly-tradeds. The penalties for lies or misstatements are sufficiently severe to keep ’em honest.

“Fed. R. Evid. 803(8) sets forth the public record exception to hearsay. A record or statement of a public office or agency is admissible under the public record exception if it sets out (1) the office’s activities, (2) a matter observed while under a legal duty to report, or (3) factual findings from a legally authorized investigation. Fed. R. Evid. 803(8)(A). A legal duty to report is broadly interpreted to include records that are created or maintained in the course of carrying out the agency’s duties.” Order, at p. 3. But not everything on an agency’s website or in its reports is covered: statements not authored or prepared by the agency are subject to exclusion as hearsay.

Government agency reports (Bureau of Labor Statistics, Commerce, State, Food and Drug) go in.

Congressional Committee reports are inherently political, hence untrustworthy. That’s Judge Tag Greaves speaking, guys,not my political comment.

FRE 803(16) lets in documents prepared before January 1, 1998, whose authenticity is established. This exception (“ancient documents”) to hearsay can apply to newspaper articles and magazine clippings.

Documents can be admitted to show what information was available when prepared, or to show they exist, but not for the truth of what the documents say.

Trustworthiness is a judgment call. See Order, at pp.7-8, for the balancing act. And the document must also be more probative of the facts asserted therein than anything else reasonably available. “Petitioner argues that we should overrule respondent’s hearsay objection because the article satisfies the residual exception to hearsay. Regardless of whether the article is trustworthy, it is not more probative than other evidence…. The effectiveness…was a prominent issue at trial. Several experts filed expert reports and testified on the effectiveness…. Fact witnesses also covered this topic in their testimony. Several exhibits have been admitted into evidence establishing Amgen’s contemporaneous views…,.. All of this evidence, most of which is specific… is more probative than Dr. S’s paper. Therefore, we will sustain respondent’s objection….” Order, at p. 8. (Name omitted).

Most importantly, don’t rely on my abstract. Read Judge Tag Greaves’ analyses.