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that an attorney would advise his or her client not to file a
return that is legally required to be filed and not to request an
automatic extension of time to file. See secs. 6012(a)(1) and
6081(a); sec. 1.6081-1, Income Tax Regs.
Second, we note that petitioners failed to call as a witness
the attorney who allegedly gave petitioner the advice not to file
his return until the criminal case was concluded. Thus, we are
reminded of another familiar principle, namely, that a party's
failure to call a critical witness may give rise to a presumption
that, if called, the witness' testimony would not have been
favorable to the party. Wichita Terminal Elevator Co. v.
Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th
Cir. 1947).
Third, petitioner's criminal case was essentially concluded
on February 14, 1991, 2 days after his jury trial began, when
petitioner pleaded guilty to the tenth count of the indictment
pursuant to an agreement reached with the U.S. Attorney. We fail
to appreciate why the 1990 return could not have been prepared
and filed within the next 2 months.
Fourth, petitioner failed to prove that the attorney on whom
he allegedly relied was competent to give tax advice and that
petitioner's alleged reliance thereon was therefore reasonable.
In our view, advice not to file a return that is legally required
to be filed and not to request an automatic extension of time to
file is suspect, particularly when, as noted above, petitioner
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