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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. But
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