- 45 -
Becker testified that he was very careful not to mislead any of
his clients regarding the particulars of his investigation. As
he put it: "I don't recall saying to a client I did due
diligence * * * [Rather,] I told * * * [my clients] precisely
what I had done to investigate or analyze the transaction. I
didn't just say I did due diligence, and leave it open for them
to define what I might or might not have done."
The record shows that petitioner did not carefully read the
offering memoranda; did not independently research the Plastics
Recycling transactions; and did not consult any experts in
plastics materials or plastics recycling. Petitioner claims that
he relied on Tucker, and particularly relied on Tucker's
purported representations about what Becker had done to
investigate the Plastics Recycling transactions. As petitioner
recalls them, however, Tucker's purported representations
contradict Becker's testimony regarding what he had done. We
find petitioner's recollection of Tucker's representations to be
unreliable, and his failure to call Tucker to testify gives rise
to the inference that such testimony would not have been
favorable to petitioners. Mecom v. Commissioner, 101 T.C. 374,
386 (1993), affd. without published opinion 40 F.3d 385 (5th Cir.
1994); Pollack v. Commissioner, 47 T.C. 92, 108 (1966), affd. 392
F.2d 409 (5th Cir. 1968); Wichita Terminal Elevator Co. v.
Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th
Cir. 1947); Sacks v. Commissioner, T.C. Memo. 1994-217. We are
Page: Previous 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 NextLast modified: May 25, 2011