Richard A. and Carol B. Little - Page 33

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          opposing party.  Wichita Terminal Elevator Co. v. Commissioner,             
          6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th Cir. 1947).              
          We do not apply that presumption here for several reasons.                  
          First, petitioner offered Vernon's monthly reports for March,               
          June, and August 1986 and an unaudited statement of Vernon's                
          financial condition for July and August 1986.  These exhibits               
          were admitted to show their effect on petitioner and not for                
          their truth.  However, since petitioners offered the documents,             
          the rationale behind the negative inference under Wichita                   
          Terminal does not apply.  Second, petitioners introduced evidence           
          that the Dondi Financial stock became worthless in 1987.  Wichita           
          Terminal does not apply to situations where a party provides                
          evidence sufficient to meet the burden of proof.  See Ianniello             
          v. Commissioner, T.C. Memo. 1991-415; Cohen v. Commissioner, T.C.           
          Memo. 1991-413.  Third, respondent, not petitioner, had the                 
          burden of proving that the Dondi Financial stock became worthless           
          no later than August 1, 1985.  The Wichita Terminal presumption             
          generally applies where the party failing to produce the evidence           
          has the burden of proof.  Wichita Terminal Elevator Co. v.                  
          Commissioner, supra at 1165.  Fourth, respondent's contention               
          that we infer that testimony by prospective witnesses not called            
          at trial would be unfavorable to petitioner seems hypothetical at           
          best since respondent did not identify any available witnesses              
          who petitioners should have called.                                         
                    f.   Testimony of Hodges and Hogue                                




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