- 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.
Page: Previous 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 NextLast modified: May 25, 2011