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his testimony and that, in his experience as a lawyer, he had not
been able to subpoena someone from as far away as Las Vegas to
appear at a trial, which, in the instant case, was held in Tampa,
Florida.7
The burden of proof is on petitioner, and we cannot assume
that missing evidence would be favorable to him. Kamborian v.
Commissioner, 56 T.C. 847, 869 (1971), affd. 469 F.2d 219 (1st
Cir. 1972); Pollack v. Commissioner, 47 T.C. 92, 108 (1966),
affd. 392 F.2d 409 (5th Cir. 1968). Indeed, the usual inference
is that the evidence would be unfavorable. Pollack v.
Commissioner, supra at 108. While we do not go so far as to
infer that Mr. Jones’ testimony would have been unfavorable to
petitioner,8 petitioner must bear the consequences of his failure
to call a witness who apparently could have corroborated his
7
It appears that petitioner could have obtained Mr. Jones’
appearance by subpoena. Sec. 7456(a) provides for the subpoena
of witnesses by the U.S. Tax Court from any place in the United
States to appear at any designated place of hearing. Petitioner
contacted Mr. Jones shortly before the trial of the instant case,
and Mr. Jones was still employed by the casino then. Respondent
subpoenaed an employee of Caesar’s from Las Vegas who testified
at trial.
8
It appears to us that Mr. Jones’ relationship to petitioner
was not such that he would ordinarily be expected to favor
petitioner and that, therefore, he was equally available to both
petitioner and respondent. Kean v. Commissioner, 469 F.2d 1183,
1188 (9th Cir. 1972), affg. in part and revg. in part 51 T.C. 337
(1968); McClanahan v. United States, 230 F.2d 919, 925 (5th Cir.
1956). In such a situation, no adverse inference is warranted.
Kean v. Commissioner, supra at 1188.
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