(dissenting).
Dr. Kenner contends that hospital funds which were diverted to his use in the years 1955 through 1959 represent repayments of loans which he had made to the hospital in the 1940s. He made the same contention in prior litigation involving deficiencies for the years 1944 through 1954. As a matter of fact, the tax court and this court found no merit in the contention because it was unsupported by documentary evidence and the oral testimony which was offered was unworthy of belief.1 In my opinion it was not unfair for the trial judge to make it clear to Dr. Kenner at the outset of this proceeding that he would not accept uncorroborated oral testimony as evidence of the same purported loans.2
Dr. Kenner argues that oral testimony was improperly excluded under the best evidence rule because various documents were lost or destroyed. In fact, some of the excluded testimony was later received,3 and some was inadmissible on other grounds.4 Of more significance, *25however, is the fact that the state of the record makes it impossible to determine whether the evidentiary rulings affected a substantial right.5
Dr. Kenner made no offer of proof. If he were represented by counsel, the defects in the record would plainly be fatal to his appeal. No doubt there are cases in which procedural rules should be relaxed for litigants appearing pro se. In my opinion this is not such a case.
I respectfully dissent.
. “Wo think it clear that the factual determinations of the Tax Oourt are fully supported by the record. Certainly they are not clearly erroneous. The detailed treatment accorded the many transactions bear out that court’s ultimate findings. Kenner’s arguments before this court constitute an attempt to have us sit in judgment of his credibility and his memory since there is little else to support his contentions.” Kenner v. Commissioner of Internal Revenue, 318 F.2d 632, 635 (7th Cir. 1963).
. Although the point was not raised by the Government, relitigation of this factual issue might well have been foreclosed by the doctrine of estoppel by judgment.
. See, e. g., transcript pp. 134-136. (Dr. Kenner attempted to testify concerning the sale of his first hospital located at 716 Wellington Avenue, Chicago, Illinois. He sought to show that the Board of Directors of the hospital voted to sell it for $57,000. This testimony was excluded pursuant to the best evidence rule. However, Dr. Kenner was permitted to establish that he, as a member of the Board of Directors, had direct knowledge concerning the sale and subsequently to testify that the hospital was sold for $57,000 in October of 1946.)
. See, e. g., transcript pp. 111-112. (Mrs. Deloris Kenner was asked whether the income of Dr. Kenner inured to the bene*25fit of Kenner’s Charitable Hospital. The court did not permit her to answer the question. She was asked the same question again, and again the court ruled the testimony inadmissible and stated in response to the statement by Government counsel that he objected to the testimony because it was not the best evidence, “It might be the best evidence and it might not. It is a legal conclusion, and I will sustain the objection on that basis, That question is for the Court to- decide based on the facts shown the Court.”)
. See Rule 103, Proposed Rules of Evidence for United States Courts and Mog-istrates (rev. draft Mar. 1971) and Advisory Committee’s Note thereto.