- 61 -
F.2d 621, 625-626 (D.C. Cir. 1967), petitioner contends that
since Mme. Koo, an alleged resident of Hong Kong, could not have
been subpoenaed to appear at the trial of these cases, an adverse
inference should not be drawn from her failure to testify. We
disagree with petitioner's reading of the Wynn case.40
The burden of proof is on petitioner with respect to respon-
dent's determinations against Radcliffe and BOT, and we cannot
assume that missing evidence would be favorable to him. See
Kamborian v. Commissioner, 56 T.C. 847, 869 (1971), affd. 469
40 We also disagree with petitioner's reading of the other
authorities to which he cites, viz., Burgess v. United States,
440 F.2d 226, 235 (D.C. Cir. 1970) (Robinson, J., concurring);
Savard v. Marine Contracting Inc., 471 F.2d 536, 542 (2d Cir.
1972); In re Stader, 90 Bankr. 29, 32 n.8 (Bankr. D. Conn. 1988);
and 2 Wigmore on Evidence, sec. 286, at 200 (Chadbourn rev.
1979). Judge Robinson began his concurring opinion in the
Burgess case with a discussion of the adverse inference rule and
his assumption that the missing witness in that case was amenable
to subpoena. However, that Judge Robinson made that assumption
does not mean to us that it is his view or, more importantly, the
view of the U.S. Court of Appeals for the District of Columbia
Circuit that a witness must in all events be amenable to subpoena
before being considered within a party's power to produce for
purposes of the adverse inference rule. Burgess v. United
States, supra at 235. Both the Savard and Stader cases indicate
that evidence must be within a party's control before a negative
inference will be drawn from that party's failure to produce that
evidence. However, as will be discussed below, for purposes of
the adverse inference rule, evidence may be within a party's
control even if it is not subject to production by subpoena. See
United States v. Martin, 696 F.2d 49, 52 (6th Cir. 1983).
Similarly, the statement in 2 Wigmore on Evidence, sec. 286, at
200, relied on by petitioner (viz., the "lack of power [to
produce] may be due to the person's absence from the jurisdic-
tion") does not indicate to us that such an absence necessarily
means that for purposes of the adverse inference rule a party is
considered to be powerless to produce the witness.
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