Walter Van Eck and Friedgard Van Eck - Page 22

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          and, thus, constitute items of gross income to them.  Walter and            
          Friedgard contest that the Reprographics Plastics' deposits were            
          expended for their benefit and, indeed, contest that such funds             
          were available to them at all:  "Walter Van Eck had only trust              
          authority over the Reprographics Plastics monies.  Not only did             
          he not use any of it for personal purposes, none of it was                  
          available to him for such purposes."                                        
               Petitioners have not convinced us that Walter only had                 
          "trust authority" with regard to USB account 0894.  Clearly, he             
          had control over the account, in the sense that he made all                 
          deposits to the account, wrote all checks, and kept the records             
          with regard to the account.  In testimony, Walter answered yes to           
          the question of whether he managed the account.  We have no                 
          adequate reason to believe that Walter's authority with respect             
          to USB account 0894 was restricted in any way.  He has shown us             
          nothing establishing him as a fiduciary with respect to USB                 
          account 0894.  Walter failed to produce his brother, Jan, to                
          corroborate that Walter's authority was limited in any way.  We             
          may infer by Walter's failure to call Jan that Jan's testimony              
          would not have been favorable to Walter.  Tokarski v.                       
          Commissioner, 87 T.C. 74, 77 (1986) (quoting Blum v.                        
          Commissioner, 59 T.C. 436, 440-441 (1972); "the fact that                   
          petitioner did not offer any corroborative testimony * * * or               
          offer any explanation for not so doing weighs against him."); see           
          also Quita v. Commissioner, T.C. Memo. 1988-309 (taxpayers'                 

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