- 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 Next
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