Robert D. Grossman, Jr. - Page 51

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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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