16
mentioned in the body of the letter but not in the caption. It
was processed in due course and is not in issue here. We find it
improbable that Deshler would include the Forms 870-L(AD) for
Transpac partnerships 1982-15 and 1982-21 without comment in the
caption or the body of the letter, particularly where the Form
870-L(AD) for Transpac partnership 1982-1 and the stipulated
decision for Transpac partnership 1981-10 were so clearly
identified.
Fensterheim had no personal knowledge of what Deshler mailed
to respondent on June 14, 1991. He was out of town at the time.
Fensterheim did not produce Deshler at trial, and Fensterheim has
failed to show that he made a reasonable attempt to locate
Deshler. Fensterheim testified that his inquiry into Deshler's
whereabouts consisted of checking his telephone index for her
number. Fensterheim testified that Deshler had moved "out West",
but that he made no attempt to locate her through telephone
listings or any other means. Under these circumstances, we infer
that, had Fensterheim produced Deshler to testify at trial, her
testimony would have been unfavorable to him. Wichita Terminal
Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162
F.2d 513 (10th Cir. 1947). We also note that Fensterheim's
accountant, Milo, was not called to testify. He might have been
able to shed some light on the discussions, the extent and timing
of Fensterheim's tax knowledge, and Fensterheim's intent.
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