Summary Witness Testimony in Federal Tax Litigation Cases As Identified in Court Opinions

In U.S. tax litigation; there are three types of summary witnesses that may be called by both parties in a case. Their use provides insights into how large volumes of evidence and empirical research complex issues are presented in tax cases. To determine how witnesses are used during tax trials, this is the first to review the 109 tax opinions published through 2010 that disclose the use of summary witnesses. This paper first discusses the Federal Rules of Evidence related to summary witnesses: Rule 1006 primary evidence, Rule 611 pedagogical device and hybrid or secondary-device summary witnesses. Then the court cases are surveyed to determine: the trends in the use of summary witnesses; who presents the summary witness; how many cases are Rule of Evidence 1006 versus Rule 611; the demographics of the summary witnesses; if they serve as more than one type of expert during the trial; and the reasons for which their testimony was challenged in courts of appeals. A detailed review of the opinions led to the master list of 109 cases. The majority of the summary witnesses (57.1%) presented Rule 611 pedagogical- device summaries, 26.5% presented Rule 1006 primary-evidence summaries, and only 10.2% provided the hybrid 1006 and 611 secondary-evidence summaries. The vast majority of the summary witnesses (65.3%) were IRS revenue agents or IRS special agents (10.2%). Fifty percent of the summary witnesses served dual roles before the introduction of the Daubert standard, but only one summary witness did so after the standard was introduced. The summary witnesses' testimony was challenged in 22 court cases and six verdicts were overturned due to problems with their testimony