Anthony Teong-Chan Gaw as Transferee of Radcliffe Investment LTD. - Page 91

                                                 - 173 -                                                   
                  Having analyzed the factors considered by courts in deciding                             
            whether to create a presumption under rule 301 of the Federal                                  
            Rules of Evidence that are relied upon by petitioner, we conclude                              
            that creation of such a presumption is not warranted or appro-                                 
            priate under the circumstances presented in these cases.  Thus,                                
            petitioner has the burden of going forward with evidence to show                               
            that respondent erred in determining that BOT was required to                                  
            withhold tax on the interest at issue in the Horbury transaction.                              
                  Turning to the merits of petitioner's position with respect                              
            to the Horbury transaction, petitioner appears to advance two                                  
            principal contentions to support his argument that the interest                                
            at issue in the Horbury transaction is exempt from U.S. taxation                               
            under article VIII(1).  He first contends that that interest is                                
            exempt under that article because it was paid to a corporation                                 
            organized in the Netherlands, viz., Horbury, and therefore the                                 
            express provisions of that article have been satisfied.                                        


            128(...continued)                                                                              
            a subsidiary of Pioneer during the years at issue and (2) Pioneer                              
            was a public corporation, Horbury's records were in his father's                               
            files, and those files were in the control of his mother and                                   
            siblings who refused to talk to him, let alone provide those                                   
            files to him, because of a hostile family relationship.  We note                               
            that petitioner was able to obtain from his mother and siblings                                
            at least one document from his father's files (viz., a letter to                               
            S.C. Gaw from Mr. Catterton) that he introduced into evidence in                               
            an attempt to support his position in these cases.  In any event,                              
            even if we were to accept petitioner's testimony concerning his                                
            inability to obtain Horbury's records, that inability would                                    
            affect only the type of evidence that petitioner could have                                    
            presented in support of his claim.  See Malinowski v. Commis-                                  
            sioner, 71 T.C. 1120, 1124-1125 (1979).  Petitioner did not offer                              
            credible secondary evidence concerning the Horbury transaction.                                



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