USTCP Q&A

Q:  "The evidence section of the exam has questions like this: 'On cross-examination, IRS asks taxpayer's brother if he lied about his university degree on his job application two years ago. Taxpayer objects. How should the Tax Court rule?'

A: This is a classic FRE 608(b) fact pattern — testing whether you know the difference between asking about a specific instance of untruthful conduct and proving it up.

Ruling: Objection overruled. The court should allow the question.

Why:

FRE 608(b) governs this exactly. The general rule is that specific instances of a witness's conduct, offered only to attack or support the witness's character for truthfulness, cannot be proved by extrinsic evidence. But the rule carves out an exception for cross-examination itself: the court has discretion to allow inquiry into specific instances on cross-examination if they're probative of the witness's character for truthfulness or untruthfulness.

Lying about a university degree on a job application is a classic example of conduct probative of untruthfulness — it's a deliberate misrepresentation for personal gain, which fits squarely within what 608(b) is aimed at (as opposed to, say, a prior traffic violation, which wouldn't qualify).

So the mechanics here:

• Asking the Taxpayer on cross whether he lied about his degree → permissible, subject to the court's discretion, because it's inquiry into conduct probative of untruthfulness.
• If he denies it → the examiner is stuck with the answer. IRS cannot then bring in extrinsic evidence (documents, another witness) to prove he actually lied. That's the "extrinsic evidence" bar in 608(b) doing its work.

A few things the exam likes to test around this pattern that are worth having cold:

• 608(b) instances must go to truthfulness, not general bad character — a fistfight or a DUI wouldn't qualify, but fraud, lying on a resume, or falsifying records would.
• This is distinct from 609, which deals with impeachment by criminal conviction — no conviction is mentioned here, so 609 isn't in play.
• The rule limits this to cross-examination of the witness himself (or someone whose character the witness testified about); you can't just call a rebuttal witness to testify "he's a liar, I know because of the resume thing."
• Tax Court, per its own Rules of Practice and Procedure, generally follows the FRE (see Tax Court Rule 143), so this isn't a special Tax Court carve-out — it's straight federal evidence law.