- 39 -
determined by market conditions and is economically realistic and
reasonable" since Mr. Borawski had 20 years of experience in the
industry. Suffice it to say that the IRS is not required to
accept the assertions of interested parties on faith. In fact,
the legislative history also addressed this point:
Similarly, the exercise of the Secretary's sole
discretion in determining how much weight, if any, to
give to any individual document or other item of
information that has been submitted is subject to the
same scope of review, i.e., proof by clear and
convincing evidence that the Secretary abused that
discretion, while accepting as true all allegations and
inferences that may support the Secretary's position.
[Id.]
Petitioner's argument that Ms. Hamilton used an
"unauthorized" IRS economist is without merit. The case cited by
petitioner does not support its argument.19 Nor will we draw an
adverse inference from respondent's not calling the IRS economist
as a witness. It is not up to respondent to prove that her
determination is correct; it is petitioner who has the heavy
burden.
If a party fails to introduce evidence within that party's
possession, we may presume in some circumstances that, if
produced, the evidence would be unfavorable to that party.
Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165
(1946), affd. 162 F.2d 513 (10th Cir. 1947). This is true where
the party which does not produce the evidence has the burden of
19 Center on Corporate Responsibility, Inc. v. Shultz, 368
F. Supp. 863 (D.D.C. 1973).
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