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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
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