M. Bennett Marcus and Maria F. Marcus - Page 21

                                       - 21 -21                                           

          adequate records from which their tax liability may be                      
          determined.  Petzoldt v. Commissioner, 92 T.C. 661, 686 (1989).             
               Petitioners have failed to establish that they are entitled            
          to the additional deduction for attorney's fees.  They presented            
          no documentary evidence such as canceled checks.9  Petitioners              
          failed to call DiCaro as a witness or any other person who could            
          corroborate their claimed payments to him.  Also unexplained is             
          how petitioners managed to have every canceled check to                     
          substantiate payments to four other attorneys but could not                 
          produce a single canceled check for the claimed payments to                 
          DiCaro.  If Mr. Marcus' records were lost closing up his office,            
          why were the only legal fee checks misplaced the ones to DiCaro?            
          Why didn't petitioners get copies of the canceled checks from               
          their bank?  Under these circumstances, Mr. Marcus'                         
          uncorroborated testimony is not sufficient to substantiate the              
          deduction:  "We know of no rule that uncontradicted testimony               
          must be accepted by a court finding the facts, particularly                 
          where, as here, the testimony is given by interested parties."              
          Wood v. Commissioner, 338 F.2d 602, 605 (9th Cir. 1964), affg. 41           
          T.C. 593 (1964).                                                            


          9  Petitioners attempted to enter into the record a "recreated              
          fee statement" from DiCaro's office to show that the fees had               
          been paid, but failed to authenticate the statement by having               
          anyone from DiCaro's office testify.  Also, the recreated                   
          statement only purports to show that payments were made, not by             
          whom payments were made.                                                    




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