- 137 - 1282, 1297-1298 (7th Cir. 1988). If a witness is “equally available” to both parties and neither party calls that witness at trial, then no adverse inference is warranted. See Kean v. Commissioner, 469 F.2d 1183, 1187-1188 (9th Cir. 1972), affg. on this issue and revg. on another issue 51 T.C. 337, 343-344 (1968). The fact that the tax liability shown on petitioner’s and Betsy’s timely filed 1983 tax return is substantially greater than the tax liability determined in the notice of deficiency in the instant cases is apparent; it should be explained by respondent in a fraud case. The issue of the audit conducted in 1987 and its impact on the question of fraud for 1983 was referred to in petitioner’s pretrial memorandum. Petitioner was called as respondent’s witness, and so petitioner was available to respondent, and respondent should have dealt with the matter. In addition, we may assume (at least, in the absence of explanation to the contrary) that respondent’s records indicate the sequence of events and the names of respondent’s participating agents with respect to the 1987 audit. Thus, there is no basis for invoking the Wichita Terminal doctrine against petitioner; rather, we might fairly consider applying it against respondent. Petitioner’s and Betsy’s 1983 tax return, as filed, substantially overstated their actual 1983 tax liability. ButPage: Previous 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 Next
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